ML20012E273
| ML20012E273 | |
| Person / Time | |
|---|---|
| Issue date: | 01/31/1990 |
| From: | NRC OFFICE OF ADMINISTRATION (ADM) |
| To: | |
| References | |
| NUREG-0750, NUREG-0750-V30-N01, NUREG-750, NUREG-750-V30-N1, NUDOCS 9004030109 | |
| Download: ML20012E273 (89) | |
Text
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NUREG-0750 Vol. 30 No.1 oeooeo tT.#a.*.*3
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'fo**o*.*.*J NUCLEAR REGULATORY
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COMMISSION ISSUANCES July 1989 This report includes the lasuances reoolved during the specified period from the Commission (CLI), the Atomic Safety and Lloonsing Appeal Boards (ALAB), the Atomic Safety and Lloonsing Boards (LDP), the Ad-ministrative Law Judge (ALJ), the Directors' Decisions (DD). and the -
Denials of Petitions for Rulemaking (DPRM).
The summaries and headnotes preceding the opinions reported herein are not to be doomed a part of those opinions or have any independent legal significance.
..i BG.4:O'O 6 0 Division of Freedom of Information and Publications Services Off60s of Administration U.S. Nuclear Regulatory Commission.
Washington, DC 20555 (301/492-8925) 9004030109 900131 PDR 0R
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909994 MS@OWS9 COMMISSIONERS J
Kennem M. can, chainnan Thomas M. Roberts Mennem c. nogws James n. cwties i
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h' Christine N. Kohl, Chairman, Atomic Salsty and Ucensing Appeal Penel
- s. Paul coner, chw Adminierative Junge, Atomic sesery and uneneing soard Penes es>*
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- dmpatmoed Oocke, Oi.4 3,.oog INDOO O O ORDER. CL1-89 12. June 22.1989............................. 19 E09998a ISOOOOO 4 JOSEPH J. MACKTAL J
Docket 014 89-006 ORDER CL1 89-13. July 5,1989............................... 27 OIA INVESTIGATION Docket OIA 89 02 ORDER. CLI-89 11 April 24.1989............................. 11 PHILADELPHIA ELECTR:C COMPANY (Limerick Ocnerating Station. Units 1 and 2)
Dockets 50 352-OL 2. 50 353 OL-2 (Severe Accident Mitigation Design Alternatives)
MEMORANDUM AND ORDER. CL189 10. July 7,1989........... 1 i
laskance of the Atossic Safety and Licensing Appeal Board-VERMONT YANKEE NUCLEAR POWER CORPORATION (Vermont Yankee Nuclear Power Station)
Docket 50-271 OLA (Spent Puct Pool Amendment)
DECISION, ALAB 919. J uly 26,1989........................... 29 lesuances of the Atoanic Safety and Licensing Boards PACIFIC OAS AND ELECTtlC COMPANY
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(Diablo Canyon Nuclear Power Plant. Units 1 and 2) '
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Dockeis 50 275-OLA. 50-323-OLA (ASLBP No. 89 586 02-OLA)
Q (Remand Concerning Ziscaloy Fire; Adequacy of Supplemental Environmental Assessment) 1 MEMORANDUM AND ORDER. LBP 89 20. July 28,1989........ 65 O,
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(Lirnerick Generating Station. Unks 1 and 2)
- OO@e e o Dockeis 50 352 OL 2. So.353 OL 2 (ASLBP No. 89 589 04 OL R2) 000OO (Design Alternatives) eOOOeG MEMORANDUM AND ORDER, LBP-89 19. July 18,1989......... $5 D000000
- eooOOG RODOER w. ELLINOWOOD DOOOO9 (Senior Operaior License for catswba Nuclear Station)
'DOO O 9 OO j INITIAL DECISION. LBP-89 21. July 31.1989................... 68 l
Issmance of Director's Decision PLORIDA POWER & L10HT COMPANY (Turkey Point Nuclear Generating Plant. Units 3 and 4)
Dockets 50 250. 50-251 PARTIAL DIRECIOR'S DECISION UNDER 10 C.F.R. I 2.206, DD-89 5, J uly 12. 1989..................................... 73 l
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Kennoin u. Cerr, Chairman i
Yhome. M. me Kenneth C. Rogere James R. Curtles j
i In the Matter of Docket No. 90452-OL t 50453 OL t (Severo Aeoident Mitigetton Design Ahernative )
PHILADELPHIA ELECTTilC COMPANY (Limerlek Generating Station, Unite 1 and 2)
July 7,1989 i
in response to Applicant's request that the Commission authorize low and full power operation for Limerick Unit 2, the Commission Ands that the recent decision by the U.S. Court of Appeals for the Third Cintuit ordonng the agency to consider certain severe-accident mitigation design alternatives ("SAMDAs")
for mitigating severe accidents does not preclude Commission authorization of
.i a low power license. 'Ihe Commission believes that the Licensing Board's earlier full power authorization and the existing Anal environmental impact statement adequately support issumwe of a low-power license once necessary NRC Staff safety indings pursuant to 10 C.F.R. 550.57 have been made.
N -"" 9 The Commission defers ruling upon full power operation until it conducts its
'W@WSO4O, immediate effectiveness review in accordance with 10 C.F.R. 62.764(fX2).
B904 i
OPERA't1NG LICENSE: LOW POWER LICENSE (EFFECT OF' Y
FULL POWER AUTHORIZATION)
D in the event that full power authorizauon is issued by a licensing board prior -
- j to any request for low power authorizabon, that determination normally will i
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f be effective to support low power operadon if the applicant requests permission ggggggg from the NRC Staff, without review by the Commission.10 C.F.R. I 2.764(f)(2).
Ome01 A i ensing b ard's grant f full power authorization subsumes any need to seek g gygggg separate licensing board authorization for low-power operadon.
DOOOOOGI NSW OPERATING LICENSE: LOW. POWER LICENSE 00 DeeOI OOO A ince,,in, 3o,d decision a,ihon,.in,,, ope,, ting i;cen,e fo, f,ti po,e, can be deemed effective to authorize issuance of a low power license (one for Oe006OO!
ope,adonai =.dng = ien ihan se of raied power), despii. ihe pendoney of a
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court ordered licensing board remand, provided that the issue on remand is not relevant to low-power operadon.
MEMORANDUM AND ORDER Pending before the Commission is the motion of applicant Philadelphia Electric Company C'PECO") for clari6 cation of the licensing status of the Limetk Generating Station Unit 2.
In its modon, PECO requests that the Commission authorize the NRC Staff to grant low power and full power operating limnses for Limenck Unit 2 pending compledon of an ongoing adjudicatory proceeding. '! hat proceedag was convened by the Commission in response to a recent decision by the U.S. Court of Appeals for the Third Circuit ordermg the agency to consider, in the context of the National Environmental Policy Act O'NEPA"), certain severe accident midgation design alternatives C'SAMDAs") for the Limerick facility.
For the reasons stated herein, we And that licensing authorisation can be granted for low power operadon pendmg completion of a hearing on the impacts of SAMDAs for mitigating severe accidents. Under the circumstances here, the Atomic Safety and Licensing Board's authorintion for full power operation of Limerick Unit 2, LBP-85 25, 22 NRC 101,116 (1985), and the existing Anal environmental statement C'FES") for the Limenck facility, NURBO-0974 (April 1984), without further supplementation, adequately support issuance of a
--1 low-power license once necessary NRC Staff safety Andings have been made,
,gggggggg low power operation carnes with it a much lower risk than full power of the type of severe accident that the SAMDAs being addressed are intended to mitigate. Moreover, a cost /beno6t analysis for low power operadon reveals that g4 the bene 6ts far outweigh the minimal environmental costs that may be involved g
and, in any event, establishes that low-power operation will not foreclose the gg adoption of any of the SAMDAs at issue. Accordingly, the NRC Staff, upon e
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i making the apprtyriate Andags pursuant to 10 C.F.R. I 50.57, may issue a low-6@OOeO.ei 3***' "',*"*;, a eu n,,,,,e, d,tm.%,assens fun-poww autho-p OOOOSeO.
riu.uan u one propniy io tie made in d coment of oie Commhdon's hame-6eeOOeea diaie sanctiveness review for umerick Una 2,== defer ruung span sat tenue OOOooeoI umii.e condma aat revi w in necedance wnh no C.P a. s 2.764(fx2).
D@@ OO@e 4 0000ee01 3- #N#N 6@cOceeq 00o Oeoei Appucant's madon coma in the wake of me decision by d. v.s. Comt of
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Appants for the Third Cbcak la Limerick Ecology Aedon, Inc. v. NAC,969 P'Jd 199 (3d Or.1999) Oaselasher ched as IEA). In IIA, the Third Circuit held est the agency had arred in dismissing a ran.umion by leemmmor Umarick Ecology Action ("1 EA") that sought to obtain consideration of SAMDAs for the Umerick Ocaerating Sandon. The court instead declared that as part of its NEPA sespoeslidlines, the Commission had to give considandon to SAMDAs for the Umaridk Osmerating Stadon. The sowt remanded the matter to the agency for further proceedings' la hs motion, PECO asserts that the Commission should decise that authority over te issuance of the operating license for unnerick Unit 2 was not delegated to the Ucensing Board as a result of the Casnmission's May 5,1989 order remanding the issue of SAMDA considersjon. According to PECO, the Third Circult's decision, by its own terms, had no impact upon the effecdveness of the t ic= ting Board's initial decision authorir.ing issuance of an operating license for Umerick Unit 2. Moreover, PECO reeds the Commission's May 5 ordar as a determination that the Ucensing Board's authorization for issusnoe of a full power license for Unit 2 resnains vetid. As a result, PECD concludes, the Commbslon should direct the NRC Staff in issue an operadng license once the Staff has made the requisite dadings ander section W.57, in addition, the Applicant requests the she Compiadr-grant an exempdan from any applicable regulatory requbuneus in 10 C F.R. Part 50 and Part 51 ans would be necessary no paradt op.m*=i pandag the naam=* af the ongoing remand a$udicadon.
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Inervenor 1.EA and the Commonwealth of Pennsylvania (T-n r
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6O o@ e o e e' oppose PECO's motion. They assert that the effect of the *!hird Circuit's O04OSS Oi decision was io nutiify ihe nuihorisaison sraned by the Licensing soard.
004OOOOO wo, cover, they assert that the Commission's regulations in Part 51 speci6cally D0000e0t require that the agency must rectify the inadequacy in its NEPA statement t@@OOSSO identi6ed by the Third Circuit prior to providing licensing authorization. They also muert that the stant of an uomption from the requirements of Paris 50 and 00,0@9904
$1 requested by the Applicant would be contrary to law and not in the public 9460986C hmerest and ihus should be denied.
0000#OOi The NRC Staff has assened that case law governing de issuance of judicial stays in instances when an agency may be in violation of NEPA's requirements as well as Commission precedent would permit the agency to authoriae operation of Limerick Unit 2 while the agency brings itself into compliance with NEPA and the Third Circuit's order. *!he NRC Staff also suggests that an exemption from several of the agency's NEPA regulations may be necessary prior to authorizing fullfower operation of Limerick Unit 2, but that an esemption would be authorized by law and would be in the public inerest.
In reviewing the positions of the parties, the Commission notes that they have not made any differentiation between operation at low poner (i.e., less than 5%
of rated power) and full-power operation. Rir the reasons stated herein, we have chosen to treat these two modes of operation separately.
D.
LOW POWER OPERATION.
The Commission's rules provide that up application a low power license may be authorned by a licensing board and issued by the NRC Staff prior to the completion of the Board's initial decision on full-power authorization (10 C.F.R. I$0.57(c)), and that such low power authorisation becomes ef-fective without any "immedate effectiveness" review by the Commission (10 C.F.R. 5 2.764(fX2)). However, in the event that full-power authorization is is-bued by a licensing board prior to any request for low-power aud,aiA that determination normally will be effective to support low-power operation if the applicant requests permission from the NRC Suff, without review by the Com-
__W mission. Id. Essentially, a licensing biper('s gnet of full-power authorization hhg Qg g L s
any need to seek separate W W authorization fw low-power OS la the unusual GE
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of this ceae, however, the question arises O
whether the Licensing Board's decision of July 22, 1985, authorizing an
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operating license for 1.imerick Unit 2 should be deemed effective to authorize issuance of a low-power heense (one for operational esting at less than 5%
of rated power) in light of the Third Circuit's action holding that exclusion of
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LEA's SAMDA contendon was unlawful. Por the reasons set forth below, the Commission Ands that the existing Licenairng Board authorization was and is DOOGeoee effective to permit issuance of a low-power license by the NRC Staff once it OMO$$Q concludes that all other requirements of section 50.57 have been met.
DOWOOee$
Neither the Dird Circuit, the Commission, nor the Licensing Board has 000006G acted (or has received a request to act) to stay or rescind the authorization
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granted by the Licensing Board for full-power operation of the Limanck facility.
J OOOOeee Accordingly, as was explained mere, it continues to be a valid authorisation for
$Q.O Mg gg low power operation. And, under the Commissio#t rulcr, that authorization as OOO09Og it relates to low power operadon is effective without further Commission action.
Moreover, after careful consiccrstion of the Dird Circult's determination, we have found nothing that leads us to conclude that it compels rescission of the Licensing Board authorizadon's effectiveness as it relates to low power operation. As we explain below, the Dird Circuit's decision regarding SAMDA i
consideration in no way impinges upon the validity of the existing PES as it relates to low power authorization. Dere thus is no need to inservene to delay the effectiveness of the existing Licensing Board authorization based upon that -
1 FES, at least insofar as it authorises low power operadon.:
i LEA and the Commonwealth take the position that the court's Anding of a NEPA deSciency has invalidated the agency's prior determinations regarding i
Limetick to the extent that the Licensing Board's initial decision authorizing full-power operation is void and no further action can be undertaken until a NEPA supplement is issued by the NRC Staff and found suf6cient by the Licensing Board. Nonetheless, as the NRC Staff points out, the Dird Circuit did not take issue with any of the agency's Andings on NEPA environmental issues or Atomic Energy Act safety matters save one:. ks failure to analyse under NEPA the additional matter of the alternative of further midgation of the consequences of severe accidents through certain facility design changes. Left standing by the court are the NRC Staff's assessments in the Anal PES thet the risks of a severe accident itself are small (NURBO 0974 at 6-3); that operation of the Limenck Generating Station would have a minimal environmemal impact for full-power operation (id. at 6 4); and that for full-power operadan,1: sert was an overall favorable balance of the beno6ts of the plant versus the environmental costs that.
i could result (id.). Dus, the basic NEPA framework supporting Limerick facility.
operation, including low-power testing, remains in place?
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eessi s enh s.im far low-power spesame einse is esak sely web en ensus emessmay piseng issus. 4 maner na missess to now.pomer speemen uner the h's sneunnemst 10 CJA plut 50. Appenas a,ll.
8Pwvesunly we beve eksuved that in the usal asas NafA sees mai sagsin any asymess envhuummast analyes
@ggg of a suupmal to issus a nsetsuur apassu'ng hem seus simedsdr sing Co. Ishashasa Nusisar Pouer seseism.
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Unit 1). C1J.64-9.19 MtC 1335. ISM osed). As en hamnestees may to the isD power hemme that has very unau ingeses erits own,1se power spensism far NaPA pumpasse is enksumed is the avisumamenl eushasmas ser (Ceanasse h ) e %'.O M s
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8 in the face of an environmental analysis valid in all respects save one, the OOO4eoe issue with regard to low power is whether that dc6ciency is relevant to low power WO O
operation or, stated another way, whethee the existing PES will support low-em SO power operation without further supplementation. The answer to this question, e69 O, in turn, depends on the degree to which severe accidents, and the SAMDAs that i
O4 are intended to mitigate such accidents, are implicated in low power operation.
1 p.geneeo puring low pomer operation, the already small risk of a severe accident at I
300OeS O 4 a boiling water reaciar such as the Limerick facility is reduced still more. see pOg@gggg 53 Fed. Reg. 36,955 (Sept. 23,1988): SECY 84156. Even for those accident sequences that, if unmitigated, could lead to a radioactive release, such as a large-break loss of coolant accident, the probability at low power is lower than at full power by a factor of between 1000 and 100,000, depending upon the event involved, and the consequences are signl6 candy less severe. SECY 84-156, Enclosure 1, This is so because operators have more time available to restore safety systems or take corrective action, because the Assion product
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inventory during the penod of low power operation is much less than during full power operation, and because the required capacity for existing mitigation systems on the facility is much reduced.14.: 53 Fed. Reg. at 36,955, 36,956.
Thus, this additional substantial reduction in what is already acknowledged to be a small risk of severe accidents establishes that the court's requirement for l
SAMDA consideration is, in the context of low power operation, directed at an i
insigal6 cant risk. As a consequence, the mandate to consider SAMDAs has no impact upon the validity of the existing NEPA 6ndings in the FES, which fully support low-pomer operation without further supplementation.
Nonetheless, it might be assened that if low power operation would increase l
the envimamental cost of SAMDA implementation to a degree suf6cient to outweigh the bene 6t of going ahead promptly with low power testing or would otherwise foreclose subsequent SAMDA installation, in the circumstances of the court's romand that might be reason to postpone low-pomer operation. While it is not apparent that an additional formal cost / benefit analysis is necessary for low pomer operation in this regard, the Commission nonetheless $nds after analyr.ing the ciseumstances here that these effects will not occur,
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On one side of the balance are (1) the occupational exposures due to activation of materials in the reactor coolant system and contamination of reactor coolant i
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surfaces and (2) the possible slight increase of risk to the public that in principle g
could arise from operation at low power without mitigation ahernatives for the short period, as liale as 3 to 4 weeks, while testing is under way, On the latter l
point, the parties have presented nothing that suggests that any slightly increased ex
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I risk to the public over the limited period of dme necessary for low power tesdng A gg warrants any sigal6 cant expense to reduce the risk. With respect so the issue of g~g occupational exposure, on the basis of the NRC Staff's analysis presented in its response to PECO's notice, it appears that after full-power operanon has begun the refueling outage installasion of the SAMDA with the mNt occupadonal j
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g exposures would result in an incremental esposure of c- --""y 1352 g
persor rem.* However, in the case of low power operation, the radioacdve m
ggg contamination and acdvation of mactor system components durag the relatively OOI short duration of operation would result in occupadonal exposures that would i
Q9006OO4 3,, educed by at least 75t* nds would place the incremental exposure reladng to S AMDA installation after low-power operadon at approalmately 338 person-
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rom,' which is comparable to the occupadonal exposse incurred as a result of other major work performed during a typical boiling water reactor refuehng I
outage.
On the other side of the balance is the cost of delay of at least 3 to 4 weeks for full power operation that must be endured iflow-power testing has not been started when Limerick Unit 2 is ready for full-power santup. PBOO apparendy will be ready for full power operation of Unit 2 widda the next 30 to 60 days l
and the adjudicatory proceeding on S AMDAs is reasonably likely to extend well i
beyond that time frame. On the basis of PECO esumates conudned in its motion l
and supporting documents (which LEA and the Commonweshh do not seriously
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i dispute), the cost of a 1 month delay in full power opendon while low-power testing is ongoing could be in excess of 40 million dollars.'
Added to this is the additional rikk of serious delay that may result if low-power testing is not authorised and thereby precludes the early detection and i
correction of facility problems. In addition to providing facilhy operators with the opportunity to become familiar with the plant's operating characteristics, I
b h eMVS hl eip d h w w M's W ab lec M h he h w emmens far e doen weisegnaled had nothis ese samste dev6me, fuums a pop S es of NumboCR4035; the assu of possendag wah Maal *= af sist devise eher hdl-pseer spammen, feed as pop 349; and a esse sets of 40 uduuma per beur feasid to be tyyned of ese dryweD displusen saar whom aansh of to wouk sa sist een summen dernes wamW be pedusand. Pa ihans sessen, k appens that appsushmeesty 33.792 push wouW be sequesed forwh== which et 40 annum per insur sesaks ta e esent 6mmesmessel empamus of 1852 pam8m'L 81n he elleswh in suppert af he suspanas to pBOo's assism, tio ISC sisir essess that samr lue temme.
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et tJmmisk Umh 1. wtssh was svar i pues eher the busheesse d asB pomer spesuka, eis dryusE diaphapa seer dass saw was ehess 10 mamme per how, oise sie stammuky chaner peded of ens issuived ter lee-pseer tuseus and die essesysmeng mueber emans of samse er eeuw den punasses est would be gustased,ilms th per haar sgsm, wensk as amogioner af the ha9 sues dass men edspend by ths IGC suff, sagessoas e esammusam apper besmeery far dass seen is he asymmed = a asuk af ise,sser essenen d
' asses the evamp sank af hademns e fans! mahaismsy of 10 per sun $nerusesmal Cemaness an assenen Penseman, Ptds. 36,100), ens assuspends to e e.05 pasmesse esmear esah is eis sus fusse tsuelset
'7)es wedd inehde ehmast 12 saulism deuse in tussessed het esses, apposahmasty 30 ediben duase eBauenso for Ames used Amus.
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f g,3,0.0 e o eL low poww imung aim prwide an opportunity to idenufy pmbiems in aiuip.
m gggg ment that cannot otherwise be tested except through plant operation at some, 90009991
- lbeit i W, power level. '!his is particularly important because it can lead to g g gggg the identi6cadon of problems that may take weeks or months to correct before OOSOI full Power operation would be allowed. In this instance, that could save millions
.gggggg of addidonal dollars that will be lost if low power testing, and the opportunity g,
to discover and correct problems, is delayed until the completion of the adjudi.
Ts7d, whether to postpone low power testing prior to completmg DeOC6OO8 NEPA consideration of SAMDAs primarily involves balancing costs of delay, which can be reasonably esumated to be tens of millions of dollars, against potential occupational exposures on the order of 338 person-rem in the event that a decision is made to install any particular SAMDA after the reactor has been contaminated by low p:mer operation. This amount of occupational exposure, spread out over a work force of appropriate size to ensure that NRC limits on individual exposure in 10 C.F.R. part 20 are not exceeded, is comparable to exposures roudnely incured in the operation of power reactors.
See Limenck FES, NUREO 0974 at 5 42. This does not mean that sudt an exposure is automaticauy acceptable, but where, as here, eliminating it is likely to cause delays costing many millions of dollars, the exposure may reasonably be incurred.'
Under these circumstances, the balance favors the prompt issuance of a low-power authornation for Limerick Unit 2.' Moreover, it is apparent that the low-power operation of the facility will not foreclose the adoption of any of the design alternatives that reasonably may be considered as part of the agency's romand proceeding. As both PECO and NRC Staff have indicated in their filings, the operation of Limerick Unit 2 would not make physically impossible the implementation of any of the mitigation design ahernatives idend6ed by any of the parties for consideration in the romand proceeding. Also, the utility has
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agited that for purposes of evaluasing any SAMDAs in the romand preaarting, the cost / bene 6L ratio should be viewed as of the time of initial licensing without regard to any incremental costs that might be associated wkh the implementation of a SAMDA aber operation has begun, hrther, based upon the NRC Staff's he6 O 0:024 sn.%,,.,. Au i.sv us.,
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bo).aned to seed 33s poseMan of sumudserie ay=== A anels day of delay in inDe ersatism et e Isres anslaar plant like thamisk Umk 3 asuW es. mush same due ens.
8 As.o have moned, esimpe. er innumend espassesissmall A panamel tessummeal et hauens at
(===-==at h.lso, ohne the immyesery name o.f as sisk of eendams)emnant the eunes asas of the en af penbabGute ask a-he pummady geesaded.e is elessly mand es eu anos seems ths IJnustek
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l analysis of the SAMDA with the potential for the most severe implememation occupational exposures, described mera, such exposures OGeO4e
,eemi,,iy wooid,oi skew the xspA 3aia cing anniysis in such,,,,,e, i
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.s io fo,,close any, ason. die,i rnmives,a nius, low-power opefadon would IIOO09OO not act to foreclose any reasonable SAMDA."
I;O0000604 Accor6ingiy, because any SAMDA supplementation mulung from the MOO N O court's romand is not relevant to authorization of low power operation, which OOOOeeO4 is already supponed by the existing PES and the Licensing Board's authoriza-lPS O O O G G G tion of an gerating license for Limerick Unit 2, and because any cost / benefit
- Oe@04o O(
analysis of the pardculars of Umerick Unit 2 low power opersion favors the L.......__
licensing action, the Commission by way cf clarification concludes that the au-thorizadon issued by the Licensing Board remains unaltered and effective with respect to low power testing Moreom, no exemption frorn any regtdatory re.
I quirement is necessary for low power operadon. Therefore, upon making the i
necessary findings under 10 C.F.R. I $0.57, the NRC Staff may proceed to issue a license for operadon of Limerick Unit 2 at power levels not to exceed 5% of rated power and that no exemption from any regulatory requirement for such low power authorizadon is necessary.
III. FULL. POWER AUTHORIZATION in its motion, PECO also rcquests that the Commission authorire the NRC Staff to issue a full power license for Limerick Unit 2.
Previously, the Commission allowed the Licensing Board's authorisadon for Staff issuance of a full power license to become effective only for Limerick Unit 1. CL185-15, 22 NRC 184 (1985). PECO's request appears to assume that, pursuant to 10 C.F.R. 62.764, the Commission has completed its immediate effectiveness review of the Licensing Board's determination regarding Limerick Unit 2. This is not the case, however, so that a determination such as PECO vequests, which would have the effect of declaring the Licensing Board's full-power authorization effective," is premature.
- a****
l'Thee is the ikiluy or spesumal evues denne isw-pesar r-- sush as the lashsgo of semanensied osolse weist boo the drywell a sessunu is eseus of Y lenus, that osund inesses senswhat the addussus!
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pasenihty that thans evass would kissenes envuuunnant kupesas by an amous guest enmeh is gik the east-banent analysts desagned eksvo esamvely in the appenas dessem er is fasesness sal 4DA ' f 1314w psew speeman gunsusby is eundued to mamepass four phesus: (1) fuel lesest sad,
'y issung: Q) ochty isang; Q) hastep and issung is 14 er send power, and (4) isang at i to 5% of mend m' -
power, la hs Juns s. i999 ander (unpukhshedh the Canummem hidassend that the NaC Sinff was puustisd to e, shames,hase i i,i,hass i. ss a -,eass e
eru sess ems d..,hysuoi m gggg i
ferscheure of any shernsu.se or any envuummamal east by osy of inesensmal ask er eshesques assupsuenal
.m.as asussiy a,,,epsu. u ar - us.s,s. nemed sueures d u 7 su. -
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Consisent with long standing Commission practice, the Commission will not I
OGOD4 0 e i "Pl* """'" vi'* '" Limerick Unit 2 until shortly before Unit 2 gg is ready for full power operation. It is our current understanding trom the NRC O4 Sierr that timerick Unit 2 witi not be ready for s ch an ofrectiveness review for gg g at least 30 days. Prior to that tkne, however, the Commission may request that the parties address additional questions selating to the issues raised in PECO's i
motion in the context of any effectiveness comments they may provide.
.O O It is so ORDERED.
$64
.FWOOOSSG mr the Commlulon"
+
SAMUEL J. CHILK Secteury of the Commission Dated at Rockville, Maryland, l
this 7th day of July 1989.
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Cite as 30 NRC 11 (1989)
CLl-8911' IOOOO e o ei UNITED STATES OF AMERICA 44OeOeee NUCLEAR REGULATORY COMMISSION
-30009304 Deoeeeee Commesse0NERS:
e O M O 4 0 4-DeceOSea--
lCOOOG eO (
tande w. zoch, Jr., Chairman 1
,00Oeeee yh.mos u.Re6ene 0
nonnoin u. Cerr nenneth C. Rogero I
James R. Curtlee j
J f
in the Matter of Decket No. OlA 49 02 OlA INVESTIGATION April 24,1989 I
he Commission denies a request by Mr. Stephen B. Comley to quash a subpoena that requises him to provide the NRC with tape recordings of telephone conversations that are alleged to contain evidence o misconduct of an NRC r
employee. De Commission reaffirms the subpoena with certain modifications, t
i NRC: AUTHORITY TO INVESTIGATE (SUBPOENA)
Congress authorized the (bmmixsion to gather information "10 assist it l
in exercising any authority provided in" the AEA and "[f)or such purposes
- i authorized" the Commission to issue any necessary subpoenas. 42 U.S.C. 6 2201(c).
NRC: ALTTHORITY TO INVESTIG ATE (SUBPOENA)
- -~
The Commission's express authority to " appoint" or hlte employees and to r-4.;O O.0 make 'deserminadonts] to dismiss" employees is found in the A:amic Energy 44:4 Act, not the Civil Service Reform Act of 1978, nus, the Commission's I
authority to make appropnate personnel decisions is an authority provided in
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'CU s911 was snadvenauly endimd fem de Apr0 tesuance.
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the AEA, and the NRC may issue subpoenas to support investigations relative to such decisions.
I NRC: AUTHORITY TO INVESTIGATE (SUBPOENA gg JURISDICTION)
@Q in circumstances where the gvidence developed durir.g an OIA investigation ig provides suf6cient reason for the NRC to inquire further into the possibility 9Ol that an NRC employee whose role it is to investigate allegations of licensee g
wrongdoing received information relating to potential violations of NRC regu.
ggggggg g lations and did not pass that information to appropriate NRC oficials, one can conclude that the allegations being investigated raise questions involving public i
- - ~ " - ~ ^ - ~
heahh and safety which clearly fall within proper NRC subpoena jurisdiction.
NRC: ALTrHORITY TO INVESTIGATE (SUBPOENA ENR)RCEMENT) in enforcing a subpoena that seeks supposed tape recordings of telephone conversations between an NRC employee and a member of the puNic which are alleged to contain evidence of misconduct on the part of the NRC employee, the Commission is simply trying to obtain records of conversations that are relevant to a lawful investigation being conducted by the Commission. Nothing in the nrst amendment immunises such information frors discovery.
NRC: ALTI'HORITY TO INVESTIGATE (FIRST AMENDMENT RIGHTS)
The District Court for the District of Columhla expressly acknowledged that the NRC can obtain information necessary to conJuct its investigations, even if obtaining that information would burden a Arst amendment right, if the Commission has demmstrated a " lack of a3 ernative means" to avoid an unnecessary infringement on any Arst amendment associational rights. United States v. Garde, 673 F. Supp. 604, 606 07 (D.D.C.1987), appeal dsmissed, 848 F.2d 1307 (D.C. Cir,1988).
NRC:
6.g:
'O O AlfrHORITY TO INVES11 GATE (SUBPOENAS:
BURDENSOMENESS)
It is evident that by issuing a subpoena for the tape recordings of conver.
sations between an NRC employee and an alleger, the Commission is pursuing the least burdensome, indeed, the only possible means to obtain information g;gy c
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relevant to an investigation of possible misconduct on the part of an NRC em-MOOSOO(
P oyee. The Commission has no other means to retrieve such material, which l
hOO O S S G1 l' relevant and material evidence regarding the questions at issue.
DOOOSSOE le 000 99 Q1 DeeOOeoe soooSGor DO00SSO(
I.
INTRODUCTION
,9000 9 O G-This mauer is before the Commission o 1 the motion of Mr. Stephen B.Com-u _ _ m..
ley to quash a subpoena duces recum issued to him on March 24,1989, during i
an internal NRC investigation. Mr. Comley alleges that (1) the NRC does not l
have statutory authority to issue the subpoena and that (2) the subroena violates his first amendment rights. We reject both arguments and reaf6rm tra subpoena as modi 6cd herein.
II. FACTUAL BACKGROUND in August of 1988, the NRC's Of6cc of Inspector and Auditor CO!A")
received allegations of misconduct involving an employee in the NRC's Of6cc of Investigations ("Ol").1 OIA was the NRC of6cc assigned to investigate -
allegations of employee misconduct, and the Director of OIA reports directly to 6e Commission. See generally 10 C.F.R. I 1.21 (1988).8 Subsequently, OIA began an investigation into these allegations, in the late winlet of 1988 89, the Commission removed the investigation from OIA and assigned it to a special investigator, Alan S. Rosenthal, an Administrative Judge and former Chairman of the NRC's Atomic Safety and Licenshig Appeal Panel.
~
During the course of this investigation a tape recording of a January 14,1987 telephone conversation between Mr. Comley and she NRC employee in question was received by the investigators. The recording contains information that at least raises the question of whether the NRC employee (1) provided information -
of a conSdential nature to Mr. Comley and/or (2) received information from Mr. Comley that should have been, but was not, made available to other NRC t
O.D 8 4
- nis osser has been esammed so aavir m phase *efidgehme essve= sties %advensuly emised fien on o
SA initial eder signed April 17.1989. See abp ep. et p. 7. In an other aspeas, tis Onler is Wenical m de esder gggg asnad Apr017,1989.
3 Dunns the eowns of tis beesnesanden opinist emi osser, we wGI met nder to other the ponen makhis the
.$ $ $ $..(
.nas-er the NRC essplayee by nans beesume this E.. - is a esendsesial maner which is eB angoiss.
ion April 17. 1989, the funaams of otA w us temsfoned to the newly easted oface of bupeaar omen 1 mqname of lesponer onneml Act Amendnumes of 198s. pub.1. Na 104504.102 sist 2515 asnad.
S C D?S 4;S O I 13 v
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i officials. If such acdons in fact occurred, t'aey would constitute a potenual
_i eOO O.9 O O I violation of several NRC reguhtsons and a treach of certain duties of the M OOOOE empioyee in quesdon under specac NRC Manual Chapters. See, e.g.,10 C.F.R. 60,735-49a(b), (c). (d), and (f); 10 C.P.R. 60.735 30(c)'and (x) (10 We'OOSSS 4 C.P.R. Part O. Annex A); 10 C.F.R. t 0.735 3(a)(6).
DOOOOOOO Other information obtained during the course of the investigation indicates DNSO 6 that Mr. Contley recorded appmaimately 40 to 50 telephone conversations NO099OE between himself and the NRC employee in question. 'these tape recordings are
$@@@$$ 0 (
clearly relevant to ascertaining whether the NRC employee has engaged in the; DgQQgQgg alleged misconduct, malfeasance, or neglect of duty which is the subject of this investigation. Accordingly, the Commission issued a'rubpoena 10 Mr. Comley seeking "any and all tape iM.gs or transcnpts of tape recordhgs in your custody, control, or possession of any telephone conversations between yourself and any employee of the [NRC), including but not limited to" the NRC employee in question. Mr, Camley responded with the motion to gunsh which now lies before the Commission.
III. THE COMMISSION'S STATUTORY AUTHORITY TO ISSUE SUBPOENAS A.
Subpoemas la Internal lavestigations in his motion to quash the subpoena, Mr. Comley argues that "the Commis ~
sion has not issued the instant subpoena in connection with any of its powers i
under the Atomic Energy Act." Motion to Quash at 3. Mr. Comley argues that.
-j
"[t]he Commission's authority to hise and, ultimately [to) discipline agency em-ployees does not derive from the Atomic Energy Act. Rather, it derives from the Civil Service Reform Act of 1978...." 14. at 5. He argues further that "{n]o agency, including the NRC, is given subpoena authority under the provisions 3
of 5 U.S.C. Chapter 75 in the context of administrative disciplinary proceed-ings." He assens that subpoena authority in disciplinary cases "is granted only -
to the Merit System Protection Soard-a quasi judicial federal agency that has jurisdiction to review actions [against certain employees.]" 14.
Under ocction 161(c) of the Atomic Energy Act ("AEA"), as amended, the 1
(lise_nsson-g^
Commission is authorized to m
eo y"
g make sue samties or b_
. etmain such informataan, and hold su& unestings as the Comunissian sney deem -*y or paper to assist it in exerciring any eastherity provided in this Act, or in the admindstratica or enforcement of this Act, or any segulations or onlen I
issed thereunder For sudi purposes, the Commission is authoriand... by subpoena to 8898i's any person to appear and testify or appear and predace documents, or both, at any
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-J 42 U.S.C. 62201(c). In sum, Conpees authorised the C-
" "= to gather l.
informanon "to assist it in exercising any matharity provided in" the AEA and gg8l j
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"(flor such purposes... authorised" the Commission to issue any necessary I
i gig l subpoenas, Section 161(d) of the AEA provides that the C1
"-% is authorised to '
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" appoint ud as the e ;--
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1 necessary to carry out the hections of the Commission." 42 U.S.C. (2201(d).
f ggg g g Purthermore, section 161(d) requhes the Commission to "make adequate provi-g g g'g' sion for administrative review of my determination to dismiss any employee."
h3 OOOOI
- 14. Thus, the Convaission's empress authority to "appolat" or hire employees and to make " determination (s) to dismiss" employees is found in the Atomic J Energy Act, not the Civil Service Reform Act of 1978, as argued by Mr. Com-f ley 'Due, the Commission's " employees shall be appointed in accordance with j
the civil-service laws...." 14. (emphasis added), including the Civil Service l'
Reform Act. See, e.g.,5 U.S.C. 67541 et seg. However, that refemace to the l
generic " civil service laws" indicates that the appropriate civil service laws that are in effect at the time of appointment or discharge (or by implication some lesser disciplinary action) supply the appropriate standards and procedures fw effecting and processing the Com=lamitui's personnel action darialruis, not the actual authority to make such daciair=is in the Srst place. '!hus, the Commis-sion's authority to make appropriate personnel decisions is an authority provided in the AEA, in this instance, the agency has received auegadcas that one of its senior of6cials is guilty of misconduct. Obviously, the agency cannot make a~de-termination of the truth of the allegations or propose to take any action against the employee in question without making an L.. id= Moreover, the em-l ployee himself is andded to a full and fair investigation. 'Iherefore, the agency.
is obligated to make en investigation to determine whether the aDegations have any substance. 42 U.S.C. 82201(c). When it is necessary for the Commission-to conduct an invesdgadon in order to obtain information to make a personnel decision, the Commission is authorized to issue subpoenas under section 161(c).
B.
Subpoenas in Public Heskh and Safety Investigations A separate and additional basis under the AEA also supports the Commis-M04I sion's subpoena. Mr. Comley concedes (as he must) that the Commission clearly I
has the authority to issue subpoenas in invesdgedons affecting public health and safety. Modon to Quash at 3. As we noted above,-the NRC employee is an l
. employee in the NRC's Of8ce of Investigations ("O1"). 'this of5cc is respon-S9(
sible for invesdgadng allegations of " wrongdoing" or deliberate violations of NRC regulations by holders of Commission licenses. As such, these investi-gadons Dequently have serious implications for public health and safety, If an 440 H
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01 investigation uncovers information relating to violauons of NRC regulations
) O O O O A 4 0) governing the technical aspects of licensee activity, O! must refer those matters to the NRC's technical of6ces, such as the Of6ce of Nuclear Reactor Regulation O O 006.u3
("NRR"). See, e.g.,10 C.F.R. I 1.27(f) (1988).
g@ S O O S'S;O in this case, the evidence developed during this investigation provides suf.
-l OOO 009 Q %
Scient reason for the NRC to inquire further into the possibility that the NRC p@ S OMS O employee in question received information relating to potential violations of COOOeeO(
NRC regulations and did not pass that information to the appropnate officials gggggggO of NRR. Thus, the allegations being investigated also raise questions involving O90OGO@g public health and safety which, as Mr. Comley concedes, clearly fall within Proper NRC subpoena jurisdiction.
r._........-
1 IV. PETITIONER'S FIRST AMENDMENT CONCERNS ij in the pleading before us, Mr. Comley alleges. that enforcement of the d
subpoena will somehow " chill" his rights of freedom of association under the first amendment to the U.S. Constitution, citing United Stater v. Garde 673 F. Supp. 604 (D.D.C.1987), appeal disneissed,848 F.2d 1307 (D.C. Cir,1988).
t We reject this argument as a basis for quashing this subpoena. By this subpoena the Commission is simply trying to obtain records of conversations that are relevant to a lawful investigauon being conducted by the Commission. Nothing in the first amendment immunizes such information from discovery, if the case were otherwise, no party to any lawsuit or any investigator seeking to learn facts could discover the contents of any conversation.
f' The Arst amendment burdens at issue in the Garde case are clearly distin-guishable from any that might be involved in the present case ' The subpoena in Garde was directed at records and doa.6,eidi of an nuorney employed by an organization whose primary purpose, indeed whose very existence, was as-serted to depend upon protecting the con 6dentiality and identity of individuals who filed complaints regarding safety in the nuclear industry. The allegations -
in that case suggested that these individuals had requested conndentiality and had spoken to the individual involved solely because of an understanding that their identities would be protected.- Here, Mr. Comley has not made similar i
"!"""""T"""'"T""
assertions regarding the organization he calls "We '!he People" or claimed a dependence on conndentiality and nondisclosure of the identity of persons who 10 0 (
have spoken to him. Such assertions would in any case not appear plausible.
As we understand Mr. Comley's argument, he believes that if he is required -
i to surrender his tape recordings, NRC employees will be afraid to communicate with him, reducing the effectiveness of his political activities. Mr. Comley also -
)
I gq appears to suggest that the Commission is engaged in a " witch hunt" to discover the names of presently unknown Commission employees who may have been 1
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.j in contact with him. This is emaha** fly not the purpose of the subpoena.
All the subpoena seeks is information relevant to the ongoing investigation l
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described above. To remove all question about this point, the Commission
]'
by this Order hereby modi 6es and narrows the subpoena to seek only _" tape U
recordings or transcripts of tape recordings of telephone conversations between l
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[Mr. Comleyl and" the NRC employee in question. Hus, there can be no
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_n concern that compliance with the subpoena will disclose previously unknown MODDdSO(
identities of persons in contact with Mr. Comley.
[
. N GSOC Finally, we note that even were some Garde 6rst amendment interests -
QQQQggg(
implicated by this case, the Garde Court expressly acknowledged that the l
Commission can obtain information necessary to conduct its investigations, even if obtaining that informaten would burden a 6rst amendment right.
As the Garde Court explicitly noted, "it is. clear that under the appropnate circumstances [the asserted) First Amendment rights would give way to the compelling government interest in nuclear safety" (673 F. Supp. at 606), if the Commission has demonstrated a " lack of alternative means" to avoid an unnecessary infringement on any Brst amendment associational rights (Id. at 607).
De Garde Court declined to enforce the Commission't. subpoena because in the Court's view the Commission had not considered other ways, perhaps less burdensome, to obtain the information it sought. However, in the present case, the information of interest to the Commission is the precise content of certain conversations. It is evident that by issuing a subpoena for the tape recordings of the conversations at issue the Commission is pursuing the least burdensome, indeed, the only possibic means to obtain this relevant information.. Simply put, l.
the Commission has no other means to retrieve this material which is relevant l.
and material evidence regarding the questions at issue.
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i The motion to quash is denied. The subpoena is modi 6ed as set forth YAO4OeC h*'cin. The new return date is 1:00 E.D.T., April 24,1989, at the Of6cc of the ggg g U.S. Attorney for the District of Massachuseus.
lt is s ORDERED.8
~OOSSOO K O D If4 2 9 9 i nr the comminion*
S W 2 0 e r' W G G l$:0004 S O I geoeeeOC SAMUEL J. CMLK l4eoOeeSi samary of ihe commission
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Dated at Rockville, Maryland, this 24th day of April 1989.
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2n his Manien to Quesh, Mr. Cunley aehher eenarius er denies that any tape secessage (sic) er tensempts.
emat at the curvuus dans, or ever emises&" Mensa no Quesh as I a.l.1he Canumaman has dahad ibis ouder ggggg under the assumption that M.r. Counisy would amt unsas sur thus and effet and the tsapaye 4
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m have suflood to eenchade this neuer. -
huse.e.w 4C-Cuniss was uneveilable to puncipais in this dommen.
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UNITED STATES OF AMERICA
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NUCLEAR REQUI.ATORY COMMISSION -
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+
O I
SG COMMmWONERS:
OO4 D@OOOO4e l.ando W. Zech, Jr., Chairman Thomas M. Roberts l
~ ~ ~ ' ^ ~
Kenneth M. Carr t
Kenneth C. Rogers James R. Curtiss
- In the Matter of Docket No. 01-4 89 008 JOSEPH J. MACKTAL June g2,1000 -
'Ihe Commission denies a request by Mr. Joseph J. Macktal for a grant of I.
" con 6dentiality," for a change in his interview site, and for 30 days prior notice.
of his interview relative to a subpoena that requires him to provide the NRC l
with information regarding his alleged safety concerns at Comanche Peak. 'Ihe Commission inds that Mr. Macktal does not meet the NRC guidelines required for a grant of con 6dentiality with regard to his name, that the Government's interests would not be served by moving the interview to Washington. D.C., and
' hat the hsue with regard to prior notice is moot.
L RULES OF PRACTICE: CONFIDENTIAL INM)RMATION '
p' (PROTECTION FROM DISCLOSURE)-
In order for a grant of con 6dentiality Som the Commission,' the criteria in
,g;[N
}q NRC Manual Chapter 0517 must be met. '
-l RULES OF PRACTICE: CONFIDENTIAL INFORMATION (PROTECTION FROM DISCLOSURE) f lhe purpose underlying a grant of con 6dendality is to preserve the alleger's identity from public disclosure where such disclosure could cause harm to the alleger. 'lhe repeated failure of an alleger to demonstrate what harm might 19 i
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..... ~.
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m.
befall him if his name were linked to any speci6c allegation must result in a 3
60O9096 deniai of con 6dentiality until such a showing is made.
Doooes ot NO00OOO NRC: ENFORCEMENT OF SUBPOENAS 900008G4 p'OO99d in reviewing an alieger's request to chanse his interview site from a location DOLO O 9 8 O (
that is close to Ids residence, close to the plant site that is se subject of his ggggggg concern, and close to the location of investigative documents and personnel OO9OGt relative I the allegations. the Commission Ands it must balance all applicable factors.
NRCt ENFORCEMENT OF SUBPOENAS 3
)
In order to prevail on a request for more time to review and prepare his documents prior to an interview in response to an NRC subpoena, an alleger must make a credible showing that time allowed is insuf6cient, i
ORDER-1.
INTRODUCTION
'this matter is before the Commission on a motion Sled by Mr. Joseph J. Macktal styled " Motion for Protective Order" in response to a subpoena issued to him by the NRC's Of6ce of Investigations ("Ol"). The motion before us constitutes a " Motion to Quash or Modify" the subpoena.10 C.F.R. l 2.720(f).
After due consideration, we deny the motion for the reasons stated herein.
II. FACTUAL BACKGROUND-A.
Prior Contacts with Mr. Macktal i
- Ihe NRC Staff had its $rst dealings with Mr. Macktal in January 1986.
j$
At that time, Region IV opened an allegation 61e in response to a newspaper
_,, w h..OO article about certain of Mr. Macktal's alleged concerns regarding construction de6ciencies at the Comanche Peak nuclear power plant. See Fort Worth Star 3
1 Telegram (Jan. 23, 1986). Afler negotiations between his counsel and NRC '
Staff, Mr. Macktal presented his concerns both to 01 (Mar. 5,1986) and to the.-
,t g3 Region IV staff (Mar. 11, 1986). On each occasion, Mr. Macktal signed an 47 -
- 7. y j agreement conferring upon him a limited form of" con 6dentiality" in regard to.
" W"w'
' i the nature of his concerns. At no time did Mr. Macktal seek con 6dentiality with i
- 1 9em1992.0 4 20 O
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regard to his identity, See Texas Usflities Electric Co. (PM* Peak Steam
'g G,g g g g d Electric Station, Units 1 and 2) CLI 89 6,29 NRC 348,355 n.7 (1989). The NRC later revoked Mr. Macktal's con 6dentiality harane he no longer met the.
,gggggg criteria set f rth in NRC Manual Chapta 0517. See letter from Victor Stello, SWD O G e Q.
Jr.,i Michael. K hn, Esq. (Jan. 23,1989)..
MOOO9 O (
The NRC issued an inspection report covering the technical aspects of.
i OOOOD Mr. Macktal's allegations on December 22,1986. See Inspection Report 50-OOOOOI 445/8615; 50-446/8612. 'This report is a public document, and the NRC -
'SeOOGSC provided copies of it to the attorneys who represented Mr. Macktal at that
. j DCO O 9 O O (
time. Later, on August 12,1987, the NRC's Of6ce of Special Projects, which had been established to oversee construction at Comanche Peak,' attempted to provide Mr. Macktal himself with a copy of the inspection report and to obtain his comments on the NRC's resolution of his concerns. 'Ihe August 12th leuer was returned on August 24,' 1987, stamped "Not deliverable - Not at address.
- no forwarding address." The NRC did not have any other contact with' Mr. Macktal until the matter now before us arose, i
B.
Mr. Macktal's Current Concerns
'Ihe matter now before the Commission Arst arose n t e a oh f ll f1988 when the i
Citizens for Fair Udlity Regulation ("CPUR") Gled a petition for late intervention in the NRC's administrative hearmgs involving the Comanche Peak nuclear f
power plant, located near Glen Rose, Texas, Ultimately, the Commission denied the petition. See Texas Utilities Electric Co. (Comar.che Peak Steam Electric.
Station, Units 1 and 2), CL18812,28 NRC 605 (1988).
L In the course of those proceedings, CPUR submitted an af6 davit executed by Mr. Macktal which alleged certain de6ciencies and safety. concerns at the Comanche Peak facility. See Af6 davit of Joseph J. Macktal (Aug. 31, 1988), attached to "CPUR's First Supplement to hs August 11,1988 Request for Hearing and Petition for leave to Intervene" (Sept.~ 12,1988). Because Mr. Macktal was still covered by the " con 6dentiality" agreements signed in March 1986, the NRC took pains not to identify him during its decision on the petition. See, e.g., CLI.88-12, supra,28 NRC at 612 n.8 (ident:6ed only as "the.
specific individual" or "the individual involved").
As we noted above, Mr. Macktal had also Sled an action with the Department 4Oheh of Labor (" DOL") against his former employer, the Brown & Root Corporation, I
under section 210 of the Energy Reorganization Act, alleging that he had been S1 wrongfully terminated from his position as an electrician in the construction l
SS'S j
force at Comanche Peak because of his actions in voicing safety concerns.
1
%SSSS;gj Subsequently, Mr. Macktal entered into a settlement agreement with Brown l
& Root, terminating that litigation. He has since repudiated that settlement
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agreement and amampled a minstase the DOL pW-. a maner addressed g 3,0 O 8 O e (
at length in both CLI-8812 and CL1-894.
ggggggg In pleadings Aled with the Secretary of Labor and provided to $e Commission 9OOO9 g g d during the pmceedmgs that culminated in CLI 894, Mr. Macktal stated that he 999OO9eG had whleeld infwmmum maarding certain anfety inues han he NRC Staff 9OMOS O 4 8""8 'h' 8""*8 '""8"*8 8"'ing March of 19e6. Additionally, he alleged gggggg that he had been offered what might be termed a " bribe" to withdraw his g gg g g g section 210 action against his former employer and not e provide testimony DGO 06O O C to the NRC's Licensing Board or to the Citizens Association for Sound Energy
(" CASE"), the learvenor in me Comanche Psok proceedings. See genera #y
- ~~~~- - -
Second Af6 davit of Joseph J. Macktal (Dec. 27, 1988). See elso Af8 davit of Joseph J. Macksal (Aug. 31,1988), mera. Mr. Mattal also testi6ed about his alleged safety concerns and the alleged " bribes" during a recent angressional hearing. See 'Danscript of Hearings before the Commluse on Environment i
and Public Wasks, Subcomminee on Nuclear Regulation, at 91a106 (May 4, i
1989). Furthermore, Mr. Macktal has discussed his concerns with vanous news ory*"% See, e.g., Fort Wor A Saar Telegren (Sept. 13, 1988); Dallas Times Herald (Sept. 13, 1988); Dallas Moralat N8w8 (S8Pt.' 13,1988); Fort Worth Star Telegram (Sept. 14, 1988).
C.
The Subpoema Issued to Mr. Macktal in CLI 894 the Commission speci8cally invited Mr. Macktal to detail his '
alleged concerns. See CLI 894, myra,29 NRC at 355. Subsequently, both 01 and the Comanche Peak Project Division of the Of8cc of Nuclear Reactor Regulation ("NRR/CPPD," the successor to the Of5ce of Special Projects) requested Mr. Macktal to provide them with information that he claimed to possess regarding (1) his allegations concerning safety concerns at Comanche Ptak and (2) one of the specif.c allegations of" bribery."
Both ofBces attempted to arrange an interview date that was convenient for both Mr. Macktal, who resides in Teams, and his counsel, who reside in -
Washington, D.C. Altogether, counting both letters and telephone calls, the j
01 and NRR/CPPD of8ces have made over ten separate requests to chher Mr. Macktal or his attorneys between March 1,1989, and the present time
~.7 Os *+
in an anempt to schedule an interview. h requess included stempts to j
Q* y ' fM 1
arrange an interview with Mr. Macktal during his trip to Washington, D.C., to i
[)3.:
.~
testify before a congressional subcomrnisce investigating issues at Coenanche Jt v ! C 1 v Peak. Mr. Mastal has rebuffed all advances and has repeasedly refused to be 3
L 17 + o
!jX M3di*
interviewed by representatives of either ofSce absent the conditions he seeks to '
2 Impose by this motion.
L.,., /.,hhh D[f Accordingly, 011: sued Mr. Macktal a subpoena which was signed on June 4
% i
.o
-_hj 2,1989, and served upon Mr. Macktal on June 5,1989. The subpoena directed y : h) B 1 ;i A
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+
L I
Y Mr. Macktal to appear at the NRC's Region IV O! Of6ce in Arlington, Texas, 1
OOOOe0ei on June 15,1989,10 testify on the matters contained in his allegauons and to
,DO O OOSS S bring any reievant documenis. Mr. Mackial ir inc wt at the time of service that -
lD O e o O e e oOO O0ee ei he did not plan to comply with the subpoena. Subsequently, on June 13,1989, Mr. Macktal 61ed the motion that is the subject of this Order.'
~
SOOOOSO 4
-III. THE MOTION FOR PROTECTIVE ORDER.
DO@ 06 O O O
.nic Motion for Protective Order does' not challenge the subpoena on juris-
~ ~^- -
dictional grounds, Instead, Mr. Macktal essentially argues that the subpoena is
" burdensome" because (1) it does not give him adequate time to review and prepare his documents and (2) it requires him to appear in the NRC's Region IV O! Of6ce, burdening him with the expenses for his attorney's travel to Texas and lodging for the time necessary to prepare for and complete the interview.8 Mr. Macktal also objects to the subpoena on the grounds that it does not guar.
antee him " con 6dentiality."
in his motion, Mr. Macktal seeks relief on each count. First, he seeks an NRC guarantee of " con 6dentiality"; second, he seeks to have the deposition in Washington, D.C.; and third, he seeks 30 days prior nouce of the interview. We deal with each of those requests in turn.
IV. ANALYSIS Mr. Macktal clearly does not meet the guidelines required for a grant of con 6dentiality as that term is normally de6ned, i.e., con 6dentiality with regard to his name.. Although Mr. Macktal has not disclosed the substance of his new safety allegations, he has, as discussed above, publicly stated that he has safety concerns which he has not previously disclosed. In view of this, a 3 on Juns 20.1989. the Commusion semaived a lauer dated has 141989, fem Mr. %diat's emmsel ensking addannal tune "no asped to any sequest Alad for enfesammam af said =*r==== " Lamar et Joe 16 at 1. 'rhe
'~
lauer comaned aM+==1 assuneens in apport of the menen new befen us. The Ismar also sequesu leave to v--.
.m.., o,-
{g g passa enn arpunant to the Comnusasen on these issues.
Rg Any arpunenesla suppen of the Menen for Piensmive order should have been =d=M wish that assion.
Hawoww in ester to aved any paspadas in Mr. Madnal we have soviewed the Ismer of June 16 as if k wars a Memoranden in suppen of the Mosien for Pisesser,e onder.
l second. eat arpunars befers the Coninuamen is h-y 10 C.FJt. 62.763. We sad meshing in the l
pleadings before us to indicate how it would asmst us in sensiums a deemsaw Thessfen we else deny the motion g
for oral argument.
"Enfescanen" d the subpoens does not take placs befess the f%=====a hansed. If Mr. Masktal m6ases to comply with the subpeans as mo&ned herum, the oftes of the osamm1 Counsel win ask the Depannet of.
l Justice to seek enfenomes of the abpoena in the appropsiste U.s. Distaat Coun.10 C.FJt. 4 2.720(s). -
l 2The staff and ol estiraans that the 6nserview should be complead in Isas than I full day.
23 m
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grant of confidentiality with regard to the identity of Mr. Macktal would not be appropnate.
.O O @ o e o e [s Instead, Mr. Macktal apparently is requesting " con 6dentiality" regarding the.
R@#hOOOO$
nature of his siiegaiions, i.e., that ihe NRC disguise his allesations so that in subsequent investigations or inspections, other persons or entities such as Om'OO e eI the iacensee. Ibxas utilities, will not know if the items being investigated or DCeOO9O4 inspected are the result of Mr. Macktal's allegations.
SMOG 4O Q 70 this point, Mr. Macktal has failed to demonstrate that he meets the gggggggQ criteria for granting con 6dentiality set forth in NRC Manual Chapter 0517, 'Ihe gqqgggO (
purpose underlying a grant of con 6dentiality is to preserve the alleger's identity 96406OOG
om Public disclosure where such disclosure could cause harm to the alleger.
Mr. Macktal has repeatedly failed to demonstrale what harm might befall him if his came were linked to any speci6c new allegation that he may bring before the Staff at this time -in spite of numerous requests by the NRC Staff to provide such an explanation. See, e.g., I.etter from P. McKee, NRR/CPPD, to Michael D. Kohn, Esq. (May 12, 1989). Absent some effort by Mr. Macktal to provide the NRC Staff with some reason wiry the NRC should grant him " confidential" status, i.e., evidence of some harm that could result to Mr. Mack'tal because of -
the disclosure of the nature of the new information he provides to the NRC, we see no reason to accede to his request. In view of Mr. Macktal's numerous -
public statements regarding the nature of his previous alleged safety violations at Comanche Peak, we fail to see any " harm" that Mr. Macktal might suffer if the nature of his alleged additional concerns is made public.8 -
- Finally, the NRC has not entirely closed the door on the question of con 6 den-tiality. During recent conversations, OI representatives informed Mr. Macktal that the issue of con 6dentiality would be reviewed upon completion of the in- :
I terview and that if Mr. Macktal could demonstrate that he met the applicable i
criteria, the NRC would reconsider its position. Mr. Macktal rejected this offer, in any event, both OI and the NRR/CPPD will evaluate the nature of the alle--
i gations upon completion of the interview and determine whether a basis for a i
grant of con 6dentiality exists under the applicabic NRC criteria.
Second, the subpoena reasonably seeks Mr. Macktal's presence in Arlington, Texas. Arlington is less than 2 hours2.314815e-5 days <br />5.555556e-4 hours <br />3.306878e-6 weeks <br />7.61e-7 months <br /> drive from Mr. Macktal's residence. The Region IV of6cc is the location of the OI investigators who are assigned to -
this case. Naturally, this is also the locanon of any investigative documents compiled by OI, Rirthermore, the subject of Mr. Macktal's technical concerns g g Q g g O,S:q is a nuclear power plant also located less than 2 hours2.314815e-5 days <br />5.555556e-4 hours <br />3.306878e-6 weeks <br />7.61e-7 months <br /> from the Region IV O.O h""fm'"."J' M""2.".* *.".CI;u'.""d.
d'*.d. m'".TchO 051't. W. Wahtal asver addnused thans ennene. see Imsse Isam Visser sesDo. Jr to Misheel D. Kahn.
i ig(
Esq. (ost. s.1988; out st.19ss; and Jan. 23. 1989). ses aiss Imer inun wilhasn E Bases. 3r Esq., to Mchael D. Kalm. Esq. (Feb ICL 1989).
ISOADOS
- 0:
24 l
Of6ce. The NRC technical staff at the plant would be readily available for O.O l consultation if the necessity arose, and similarly documents and records at the plant would also be readily available.: Additionally, the NRC could arrange for Mr. Ma&tal to point out his concerns during a tour of the plant, if necessary.
Moving this interview to Washington, D.C., would require transporting those individuals and documents to Washington, at no small expense.- Moreover, it g'g would eliminate the ready access to the plant and its personnel. On balance, we Snd that the Government's interests would not be served by such action.
g g g g g.g [
M' M**** '""*i" ' "**'" "PPearno be the travel expenses of his attorney -
D9006044 if the interview is held in Texas. While Mr. Macktal may have counsel present -
at the interview, should he so choose, there is no duty on the part of the agency
~ ~ ~ " ' ~ ~ ~
to provide him with counsel of his choice or to incur an additional burden or-expense to facilitate Mr. Macktal's access to any particular counsel of his choice. -
Mr. Macktal has not pointed to any reason why he cannot obtain local counsel in Arlington.
Finally, as we noted earlier, the NRC requested an interview with Mr. Macktal when he was in Washington (with his counsel) for the congressional hearmgs -
on May 4,1989. Mr. Macktal declined to meet with the NRC Staff at that time -
and made no apparent effort to take advantage of the situation to conduct the interviews at that time. 'Iherefore, we 6nd his protests on this occasion without merit.
Third, Mr. Macktal requests thirty (30) days notice of the proposed interview.
based only upon the blanket assertion that he "and his counsel need a reasonable period of time to review said documents and make a determination as to whether =
said documents are privileged." Motion for Protective Order at 2. We 6nd this argument completely unpersuasive. Mr. Macktal has known for several months that the NRC sought information from him. Thus, any claim that he has not.
had suf6cient time to review and prepare his documents is completely lacking in credibility. However, in view of our resolution of this issue, we 6nd that it may be moot. Discussions between NRC counsel and Mr. Macktal's counsel -
have indicated that the first available date for an interview is July 6,1989, a date that we have incorporated into the modi 6ed subpoena. ' Mr. Macktal received his subpoena on June 5th. Accordingly, Mr. Macktal will in fact have had 30 i
days notice by the revised return date of the subpoena.
"imiomo e o' 4
.GA V.
CONCLUSION j
Sq Based upon the above analysis, we hereby deny the relief sought by Mr.
l gg Macktal. Because negotiations have at least identi6ed a date upon which both g
Mr. Macktal and his counsel are available, we hereby modify the subpoena to be returned on July 6,1989, at 9:00 a.m., C.D.T., at the NRC Region IV 01 Office,:
O'99 O t l
2s l
)
l l
I mA O.0.0 O e !
611 Ryan Plaza Drive, Sulle 1000, Arlington, Tbxas Upon completion of the M
004 inserview, of and the wRRxPPD siarf wiii separaiety seview ihe substance of the interview in their respective areas of concern and consider Mr. Macktal's SD SOS I
M S S G.
request for conndentiality under the relevant ' riteria of NRC ManurJ Chapter c
0517.
l It is so ORDERED.
99.0006SS 9OOMO O 1 1%r the Commission D9006006
_ _ _....... - ^ - -
SAMUEL J. CHILK Secretary of the P.ommission Dated at Rockville, Maryland, this 22d day of June 1989.
1 tende d 0.0 i A
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5a ecovye a, i
u=*
1 1
. Che as 30 NRC 27 (1949)
CLl8013
.4064 O
UNITED STATES OF AMERICA '
Oe0 NUCLEAR REGULATORY COMMISSION 6eOO4 comusssionaRs:
0ee e, Geeeee t 90006CeO Kenneth u. carr, Chairman -
J Thomas u. Roinerte Kenneth C. Rogers James R. Curtles -
In the Matter of Docket No. 01449 008 JOSEPH J. MACKTAL July 5,1980 De Commission denies Mr. Joseph J. Macktal's request for reconsideration
-- l of, and oral argument on, a Commission decision that denied his request for a -
protective order regarding an NRC subpoena.
RULES OF PRACTICE: ' RECONSIDERATION PETITIONS ne filing of a motion for reconsideration of a 6nal Commission decision does not stay the effectiveness of that decision.10 C.F.R. 62.771(c).-
1 ORDER His matter is before the Commission on a motion by Mr. Joseph J. Macktal, eq through counsel, for reconsideration of the Commission's order of June 22, h,OO60 1989 (CL1-8912,50 NRC 19 (1989)), which denied Mr. Macktal's request for.
l i
a protective order regardmg an NRC subpoena issued to him. De motion also 4
requests oral argument on this matter before the Ca==laton.-
we order of June 22,1989, modt6ed the original subpoena to the extent 1
d that Mr. Macktal's time for compliance with the subpoena, originally June 15,.
1989, was extended to July 6,1989. De Office of the General Counsel has notified Mr. Macktal's counsel that the Aling of the motion for reconsideration '
i does not stay the operation of the Commission's June 22,1989 order. 10 27
'i
p C.F.R. 5 2.771(c). Pwsuant to 10 C.F.R. 62.772, the motion having been circulated to the Commission, and no m$rity having voted for reconsideration, ggggg@$g pam904
'h' " "" '*' "consideren n and oral arsument is denied. rhe subpoena ggggggg remains in effect as stated in the Commission's order of June 22,1989.
D0000904' 869 COO 90 For the Commission gooOeeV4 MB'e 6 0 9 9 0l SAMUE J. CHH K 000oeooe secreiary e ihe Commissi.
Dated at Rockville, Maryland, this 5th day of July 1989, 1
i
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)
OM N$
maga r m e 2.
?
mn i
s misi i i i, i is is is
t 4
4 1
e4400 O e a me#marman*
- eeece e i enom.
ca Atom.
Safety and ic memosomat 9WU006.e e,
. Licensing Appeal-woe o
- ?'
Boards lssuances ATOMIC SAFETY AND UCENSING APPEAL PANEL Ctutsene N. Mohl, Chairman Alan S. Roserehal i
Dr.W. Reed Johnson ci Thomas S. Moore I
Howard A.Wilber G. Paul Bc5 work,lil*
j 1
J D O @ A D O O.4 I
i i
@@@l
- w. sonwork joined en Appeal Panet on Juy 10,1900.
i y
ei
Cite as 30 NRC 29 (1989)
ALAB-919 OG ooe o e(
LG O.O O S e 4
-i uNrTED STATES OF AMERICA Deooseoq NUCLEAR REOut.ATORY COMMISSION.
'OOOeeeQ DoOoosee
'GGOOeeo ATOMIC sAPETY AND LICENSGNG APPEAL 00ARD Do oceec e
'Goooses Adminletrative Judgee:
Ne e4
....m..
Chrletine N. Kohl, Chekman Dr. W. Reed Johnson Howard A.Wilber Docket No. 50 871 OLA in the Matter of (Spent PuolPool Amendment)
VERMONT YANKEE NUCLEAR POWER CORPORATION (Vermont Yankee Nuolest Power July 98,1980 Station)
'Ihe Appeal Board severses a Liccasing Board decision (which was before it on referral) admitting environmental contendons premised on a severe accident scenario, and certl6es its own ruling to the Commission.
NEPA: REMOTE AND SPECULATIVE EVENTS
'!he National Environmental Policy Act of 1969 (NEPA),42 U.S.C. 64321, d es a t require asencies to consider remose and speculative events. See,
... \\ f J,O'OC,
e.8., San Lads Obispo Mothers for Peace v. NRC, 751 P.2d 1287,,1301
.n T (D.C. Cir.1984), qlT*d en banc,789 F.2d 26, cert. denied,479 U.S. 923 (1986) c 9 y..:4 A A -
.sy
- , ; wok'
[ hereinafter cited as " San Lads Obispo").
. r - >.
__ _, _m
' 29 i
e 1
.4 h
ACO SO 8 f RULES OF PRACTICE: REFERRAL OF RULING TO APPEAL ggg BOARD M OSSO(
Under 10 C.F.R. I 2.730(f), a licensing board may refer a ruling to an appeal
@OGO$Q board for interlocutory review "to prevent detriment to the public interest or
(
unusual delay or expense."
OOS 9Gl M OOOOI RULES OF PRACTICE: REFERRAL OF RULING 6@OOOOOG!
An appeal board will acupt a ruling referred by a licensing board where the overall circumstances show that it is in the public interert to render a dc6nitive ruling on the maner at issue before the completion of the proceeding.
Compare Tenacssee Valley Authority (Phippe Bend Nuclear Plant, Units 1 and 2),
ALAB 506, 8 NRC 533 (1978) (appeal board af6rms NEPA mling on referral by licensing board, which in the interim completed the proceeding before it).
An appeal board will also certify its own rulings to the Commission in such circumstances. See 10 C.F.R. 6 2.785(d).-
RULES OF PRACTICE:- COMMISSION REVIEW OF APPEAL BOARD DECISIONS Under l_0 C.F.R. 62.786(b)(1), no petition for Commission review of an i
appeal board decision on a section 2.730(f) referral is permined.
RULES OF PRACTICE: CONTENTIONS (UNTIMELY FILING)
Boards must balance the Bye factors in 10 C.F.R. 62.714(a)(1) in determining whether to admit a late-6 led contention. See 10 C.F.R.12.714(b).
RULES OF PRACTICE: CONTENTIONS (UNTIMELY FILING) 1 j
The Commission's Rules of Practice are clear that "asy contentlon filed 'later than afteen (15) days prior to the holdir.g of the special p.msLig conference
... or where no special p,.ekig conference is held, Sfteen (15) days prior to k_ _
the holding of the nrst pidsing conference' is nontimely and can be admitted -
only upon a balancing of the 6ve lateness factors." Pablic Service Co. ofNew j
Hampshire (kesnA Station, Units 1 and 2), ALAB-918,29 NRC 473,480 (1989) (citing 10 C.F.R. 52.714(b); emphasis in original). See also id. (citing' Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), CLI-83-19,17 NRC g
1041, 1046 47 (1983)).
i 11 S O 4 s
1
. i.
t
I RULES OF PRACTICE: ADMISSIBILITY OF CONTENTIONS OkD O $
The third criterion of 10 C.F.R. 62.714(a)(1) - the extent to which a.-
gg p,g,s participation may reasonably be expected to assist in developing --
4 ;'
.+5!A'.
g4 a sound record - requires petitioners to " set out with as much particularity OO
- as possible the precise issues [they plan] to cover, identify (their] prospective O4 witnesses, and summarize their proposed testimony." Mississippi Powr & Light N O 9 9 01 Co. (orand oulf Nuclear Station, Units 1 and 2), ALAB 704,16 NRC 1725, 90MO@O4
' 1730 (1982), and cases cited. 'Ihis burden is clearly not satis 6e<1 where a.
%%Q@@ Ql petitioner has failed even to address the third factor.
RULES OF PRACTICE: ADMISSIBILITY OF CONTENTIONS A bare assertion of the past effectiveness of a party's participLtion on other issues in a proceeding, unsupported by specific information from which a board can draw an informed inference that the party can and will make a valuable contribution on another contention, is not suf6clent to satisfy the third criterion of 10 C.F.R. 6 2.714(a)(1). See Dade Powr Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-813,22 NRC 59,85 (1985)(citing Washington Public Powr Supply System (WPPSS Nuclear Project No. 3), ALAB-747,18 NRC 1167, 1181 (1983)).
RULES OF PRACTICEt CONTENTIONS (AMENDMENT)
Parties are not free to modify their contentions during an NRC adjudication without cause and observance of the Commission's Rules of Practice.-
NEPAt ENVIRONMENTAL IMPACT STATEMENT (SPENT FUEL POOL)
An environmental impact statement (EIS) is not automatically required under the Commission's regulations for an operstmg license amendment permitting the expansion by rerackmg of a spent fuel pool.10 C.F.R. I51.20. Instead,-
i either an environmental assessment (see 10 C.F.R. I51.14(a)) is required, or r'
~y % s. J"1~
the action is a " categorical exclusion" for which no environmental document is LW p #3s% :s '
required. See 10 C.F.R. I 51.21,51.22(c)(9).
l i
'^
p f.$" p e; ;.f3l7 y Q ENVIRONMENTAL IMPACT STATEMENT (SPENT FUEL
.y TQ i
f7 y
NEPAt 4
gg 'g-POOL) 7+g.; 7 e p,,.
. 4
.Ihe Commission has stressed that the staff should consider on a case by-case ZN1.
.$7 basis the maner of whether a particular spent fuel pool reracking amendment i, V j Mi 2.-
i 31
warrants an EIS. Pac #ic Gas and Electric Co. (Diablo Canyon Nuclear Power 1
Plant, Units 1 and 2), CLI-8612, 24 NRC 1,12, rev'd on other grounds sub Q,QQD,66 q nom. San Luis Obispo Mothersfor Peace v. NRC,799 F.2d 1268 (9th Cir.1986).
- K M Kn M
b l
RULES OF PRACTICE: ADMISSIBILITY OF CONTENTIONS
>RODOSSO g4
'Ihe Commission's Rules of Practice require that contentions have 'tases" and ggggggg i
that such bases be " set forth with reasonable speci6 city." 10 C.F.R. 62.714(b).
m qg(
>@ M iG O O Gl RULES OF PRACTICE: CONTF,NTIONS (ADMISSIBIIJTY)
N~~~"-
When a postulated accident scenario provides the premise for a contention, a -
causative mechanism for the accident must be described and some credible basis for it must be provided. See, e.g., Metropolitan Edison Co. (Three Mile Island -
Nudear Station, Unit No.1), CLI 80-16,11 NRC 674,675 (1980); Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB 765,19 NRC i
645,653 54 (1984), petitionfor review denied sub nom. Anthony v. NRC,770 F.2d 1066 (3d Cir.1985) (table) '
i NEPA: RULE OF REASON i
If a contention claims that an EIS is necessary or inadequate in some respect, the " rule of reason" by which NEPA is to be interpreted provides that agencies need not consider " remote and speculative risks" or " events whose i
probabilities they believe to be inconsequentially small." Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719, 739 (3d Cir.1989) [ hereinafter cited as '_
i
" LEA"); San Luis Obispo,751 F.2d at 1300.
NEPA: WORST CASE ANALYSIS Neither NEPA, the case law based thereon, nor regulations of the Council on Environmental Quality (CEQ) require a " worst case analysis." Robertson
- v. Methow Falley Citizens Council, 490 U.S.
,104 L. Ed. 2d 351, 372-74 (1989).
I OOOOi NEPA: CEQ REGULATIONS I
604gn
'the Commission han declined to adopt substantive CEQ tegulations (see 49 1
i gg fed. Reg. 9352, 9356 (1984)), and at least one court has acknowledged the Commission's right to do so. LEA, 869 F.2d at 743. 'the Supreme Court g
has left open the issue whether CEQ regulations are binding on independent y
MS O 4 i
32
+
ll l
l l
C & & Q Q O q'l agencies like the NRC. Baltimore Gas and Electric Co. v. Natural Resources Defense Council, lac.,462 U.S. 87,99 n.12 (1983).
@ggggg g.
GIDDOme el 6@e00mee RULES OF PRACTICE: CONTENTIONS (SPECIFICITY AND De m ol BASIS)
MDOOOees Whether the refemnce to a particular document or part thereof is sufficiently -
~
00OOee o t spec (lic to allow a board and the parties to retrieve it is one thing. See, e.g.,
4g OO PMladelpMa Electric Co. (Limerick Generating Station, Units I and 2), ALAB-804,21 NRC 587,592 & n.6 (1985). But whether a document on its face appears
- *^^ " -
to provide a basis for the point for which it is cited and raises a justiciable issue is quite another, RULES OF PRACTICE: CONTENTIONS (ADMISSIBILITY)
Boards should not make a judgment as to what weight should be given to a document on which a m^ -*n is based, as though it were a piece of -
evidence, but rather should take it (unless obviously specious) at the face value its proponent urges. Tb do the former would be tantamount to a." merits" l
determination prohibited by Houston Ligking and Power Co. (Allens Creek,
Nuclear Generating Station, Unit 1), ALAB 590,11 NRC 542,547 49 (1980).
I RULES OF PRACTICE: CONTENTIONS (SPECIFICITY AND -
BASIS)
Boards must do more than uncritically accept a party's mest assertion that a '
particular document supplies the basis for its c-*% without even reviewing the document itself to determine if it in fact says what the party claims it says,
and if it appears to support a litigable contention.
RULES OF PRACTICE: CONTENTIONS (SPECIFICITY AND.
BASIS) l n~-
pleading stage that the hearmg process is not improperly invoked." PMladelpMa 1
Electric Co, (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB 216,'
8 AEC 13,20, modified on other grounds, CLI 74 32,8 AEC 217 (1974).
jj i
l 2
33 1
I p
j 4
i-RULES OF PRACTICE: CONTENTIONS (SPECIf1 CITY AND OO
,04,O 8 j BASIS)
O OUOM Licensing boards are expected to undertake a thoughtful, albeit non-merits.
MODOO O review of any document, information, theory, postulated accident scenario, etc.,
OI that is claimed to provide the basis for a contention. See, e.g., Umerid,-
WWOMOS ALAB-804, 21 NRC at 593-94 (because ched environmental document "does not support the point for which it is urged," contention thus lacks a " cognizable SOMOD i basis 7 eeococoq
- ~ - " ~ ~ ' ~ ~
RULES OF PRACTICE: CONTENTIONS (SPECIFICITY AND -
BASIS)
The review of a document that asseriedly supplies the basis for a contention may include consideration of the fact that the underpinnings of that document have been subsequently repudiated by the document's own source. See Fabile Service Co. ofNew Hampshire (Seabrook Station, Units I and 2), CLI-89 3,29 NRC 234, 241 (1989) (citing Georgia Power Co. (Vogtle Electric Ocnerating Plant, Units 1 and 2), ALAB 872,26 NRC 127,136 (1987)).
t NEPA: RULE OF REASON When the very documents on which a contention is based conclude that thi' events underlying the contention are of very low probability, NEPA's rule of reason allows rejection of the contention at the threshold. See LEA,869 F.2d at 741 44 TECHNICAL ISSUES DISCUSSED:
Spent fuel pool reracking Zircaloy cladding fue Severe accidents Mark I containment Hydrogen control
.._n, i
49:OD O 4 9.
APPEARANCES R.K. Gad, III, Boston, Massachusetts (with whom John A. Ritsber, Boston, Massachusetts, was on the brief), for applicant Vermont Yankee Nuclear Power Corporation.
g.
34 4
4 k
j 4
~
4 2,.
~
y _ -. --
Anne Spielberg, Washington, D.C. (with whom Andrea Forster, Washington, D.C., was on the brief), for intervenor New England Coalition on Nuclear 044 BOD O 8 e ponotioo' DSEMthpee e OODDI O O I Ana P. Hodados for the Nuclear Regulatory Commission staff.
D S S O 0 9 O O' 99CMOOSO 4 DemDOSS'O DECISION 90609904 06OOO 3,,o,e us for the inird time, aident in various forms, is an environmental contention proffered by intervenor New England Coalition on Nuclear Pollution
- ~ - ^ " ^ " ' ' - ~
(NECNP) and the Commonwealth of Mannehusetts in this operatmg license amendment proceeding.' De license amendment. sought by applicant Vermont-Yankee Nuclear Power Corporation would permit the expansion of the capacity of the Vermont Yankee spent fuel pool by veracking.' he contention here at issue claims that an environmental impact statement (EIS)is reglived to consider the risk of a severe reactor accident that assertedly could lead to a self-sustaining zircaloy cladding Arc.* For the third time, we conclude that the contention is not
)
admissible.
I.
BACKGROUND ne Vermont Yankee facility is a boiling water reactor (BWR) with a Mark I containment. The spent fuel pool is located within the reactor building but -
outside the reactor's primary E=^ 'r-In early 1987, NECNP proffered a contention that sought consideration in an EIS of the risks associated with a spent fuel pool accident that would somehow be initiated by a severe reactor.
accident involving hydrogen generation and detonation. No mention was made of a zircaloy cladding fire. The Licensing Board combined NECNP's contention with a similar one submined by the Commonwealth of Massachuseus and, after redrafting it, admiued it for litigation as Contention 2.' LBP-8717,25 NRC 838, 851 55, 864 (1987).
Applicant appealed the admission of this contention (as well as two others),
7 pursuant to 10 C.F.R. 62.714a(c). We reversed. Accepting the Licensing j
J _
1;
-J. '.,
.,.~,, MS 0, Board's characterization of the contention's accident scenano as a "beyond
- ) 41. 3 yy y..;4 J design basis" event - a characterization then unchallenged by NECNP - we a
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noted that such accidents are, by definition, highly improbable. We went on to point out that courts applying the National Environmental Policy Act of 1969 (NEPA),42 U.S.C. 64321, have held that NEPA does not require agencies '
]
to consider such remote and speculative events. See, e.g., San IMs ONapo Mothers for Peace v. NRC, 751 F.2d.1287,1301 (D.C. Cir.1984), d'd en banc,789 F.2d 26, cert, denied,479 U.S. 923 (1986) [ hereinafter cited as " San '
iMs OWspo"). We therefore rejected the contention. ALAB-869,26 NRC 13, 27 31 (1987). NECNP and the Commonwealth sought reconsideration, raising several new arguments. Among them was the hypothesis that a beyond design.
basis reactor accident was not necessarily a precondition for a spent fuel pool accident involving a self-sustaining Arc. After thoroughly airing these views, we reaf6tmed our earher rejection of the contention. ALAB-876,26 NRC 277..
28145 (1987). The Commission ultimately declined review of both ALAB-869 and ALAB 876. At the time of these earlier decisions, the NRC staff had not yet issued any environmental document in W.aiion whh the applicant's license amendment application. On July 25,1988, hocever, it issued an Environmental Assessment (EA), concluding that the proposed amendment and pool veracidag will not have a sign 16 cant effect on the quality of the human environment so as to j
require an EIS. The EA briefly addressed beyond design-basis events, includang a zircaloy cladding Are due to overheating following pool failure and loss of spent fuel pool cooling. 'Ihe staff concluded that, although the environmental impacts of such an accident could be significant, it is not considered to be reasonably foreseeable in light of the pool design and structure. EA, supra note -
Icat 11.
A few weeks later, NECNP and the Commonwealth proffened three new, q
" late-6 led" environmental contentions, assertedly prompted by the staff's EA.
l w
As pertinent here, Environmental Cantention 1 claims that the EA is inadequate.
because it " falls to consider the consequences and risks... of a hypothesized :
accident which would be greater than those previously evaluated in connection -
with the Vermont Yankee reactor." The accident is described as a "self-sustaining fuel cladding Are in a spent fuel pool with high density racking...
caused by (a reactor) accident which involves substantial fuel damage without '
full core melt, if hydrogen leaks to the reactor building." The contention states that NEPA requires an EIS to address the environmental impacts of the, risks.
posed by such an accident and cites two NRC documents as the bases for its '
claim -NUREO/CR 4982," Severe Accidents in Spent Pbel Pools in Support of Generic Safety Issue 82" (July 1987) [ prepared for the NRC by the Brookhaven.
National laboratory and hereinafter cited as the "BNL Report"), and NUREO.
1150, " Reactor Risk Reference Document" (February 1987 Draft) [ hereinafter '
cited as "NUREG-1150"]. Joint Motion of NECNP and the Commonwealth D
of Massachusetts for leave to File Late-Filed Contentions (August 15, 1988) l
[ hereinafter cited as " Late Contention Motion"] at 1-3.
I 36
\\
Although it did not "perse" the consention or discuss the documents assertedly providing the bases for the contention, the Licensing Board determined that the Mg accident that is the focus of Environmemal Comention 1 is " essentially similar" a
to that in the previously considered Contention 2, which had been rejected in ALAB 869 and ALAB 876. Under the law of the case doctrine, the Board.
gggg 4 thus rejected the new contention. LBP-88-26,28 NRC 440,445 (1988), The l
Board Chairman, however, issued a sepaste statement, moognizing the binding 00 9O(
effect of, but disagreeing with ALAB-869 and ALAB 876. His principal belief O
was that the Commission's " Policy Statement on Severe Reactor Accidents O
DO4 Regarding Fbture Designs and Existing Plants," 50 Ped. Reg. 32,138 (1985)
[ hereinafter cited as " Severe Accident Policy Statement *]," permits examination
--^^
of the risk of 'beyond design-basis accidents,'" and that we had misunderstood the Licensing Board's original reescuing in this regard. LBP-88 26,28 NRC at 453 (emphasis in original).
Several months later, NECNP and the Commonweakh sought reconsideration from the Licensing Board of its decision in LBP48 26. 'Ihe basis for their request was the November 30, 1988, decision of the U.S. Court of Appeals -
for the Ninth Circuit in Sierra Club v. NRC, 862 P.2d 222, as amended i
(1989). 'the Sierra Club decision reversed our rejection of a contention, based on a draft of the BNL Report,' that sought the preparation of an EIS 1
to consider the impacts of a aircaloy cladding Art See Pac (/ic Gas and Electric l
l Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-880, 26' NRC 449, 454-62 (1987). the Ninth Circuit concluded that we had erred i
in finding that the contention did not meet the Commission's requirements in 10 C.P.R. 92.714(b) that the " bases for each contention [be] set forth with i
reasonable speci6 city." 862 P.2d at 227 28. NBCNP and the Commonwealth also took the opportunity in seeking reconsideration to elaborne on their earlier contention and to cite another NRC document on which NECNP had previously -
relied in its 1987 version of the contention -NUREO/CR 4624 "Radionuclide Release Calculations for Selected Severe. Accident Scenarios" (July 1986)
[hereinafier cited as "NUREO/CR 4624"). See Joint Motion of NBCNP and the Commonwealth of Massachuseus for Reconsideration (December 30,1988)
(hereinafier cited as" Joint Motion for Reconsideration"].
I
'the Licensing Board granted reconsideration of its earlier ruling in LBP-88-26 rejecting Environmental Contention 1. In its view, the Ninth Circuit's hSMMMOOO l
Sierra Club decision " seriously undercuts the rationale of the Appeal Board b
SO4 in ALAB-869 and ALAB-876." LBP-89 6, 29 NRC 127,132.(1989). *lhe J
Board noted that the Diablo Canyon decision reversed by the Ninth Circuit j
l "had relied in substantial part on ALAB-869 and ALAB-876." Ibid. It also f
reiterated the separate view expressed earlier by the Licensing Board Chairman that its initial acceptance of the contention in 1987 was based on its reading of the Commission's Severe Accident Policy Statement. Id. at 133 34. The SSSD@CC j
37 6
Licensing Board, however, once again did not analyze the contention or discuss its bases; it simply concluded that h " appear [s] to *.ne 'substantially identical' g
- j DGOOOOOe to ** de*h *l* by ** Nia* Circun" and is "more deservins or adeniuion" O m M 800
"""" h **' "d**'Y 8'*d" *ad "i' " 'e speci6c." id. at 132. The Bo rd y
De e O O S'S O thus admitted Environmental Consention 1.8 Noting that it was "still technically -
j
'00O O 08 G 0 '
- ""' 6 ^'** 8d' '"' ^'^"' 87 6'" " " " d '"* *** ' ' ' '"""8.
Y I
gggg and referred the matter to us under 10 C.P.R. $ 2.730(f). id. at 135 36. That
'i g.OOOS9O6 provision of the Rules of Practice authorizes referrals "to prevent detriment to-O DOOON the public interest or unusual delay or expense."
%OO@O94 Pursuant to a schedule we established, applicant and the NRC staff Sled-3riefs ursins reversal of the Licensing Board's decision, while NECNP supports the ruling admitting the consennon.* During the period in which this matter D;
has been pending before us, other court decisions ostensibly bearing on this case have been rendered, and the staff has issued two board noti 6 cations with documents pertinent to spent fuel pools -- Board Notl6 cation No. 89-01 (February 14,1989), enclosing NUREO/CR 5176, "Scismic Philure and Cask Drop Analyses of the Spent Fuel Pools at Two RW.;mive Nuclear Power Plants" (January 1989) [ hereinafter cited as the "Livermore Report"); and Board Nod 6 cation No. 89 03 (May 2,1989), enclosing, among other things, NUREG 1353, " Regulatory Analysis for the Resolution of Generic Issue 82:
'Beyond Design Basis Accidents in Spent Puel Pools'" (February 1989 Draft).
[ hereinafter cited as "NUREG 1353"). These unusual developments prompted-our pre-argument request for supplemental briefs from applicant and the staff, as well as a number of post argument pleadings tendered by NECNP, applicant, j
and the staff, all of which we accept for 61ing.8 th =h. ix a
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______-------a
w II. ANALYSIS OGooecAM gg_Q g g g,g A.
Several procedural matters must be addressed at the outset. First,-
we accept the Licensing Board's referral under 10 C.F.R. 62.730(f).. *!he D OOOeWO 4 ci'c"*ances and nature of the ruling levolved here strongly demonstrate that tOOOO99G a de6nitive ruling on the admissibility of Environmental Contention 1 is in Decomm the public interest.. '!he Licensing Board and parties are entiJed to have our CGOOSSO opinion thereon now, rather than in the context of the usual appellate review.
D O M M.O O, m
INrther, most other contentions in this pp-hsig have been resolved,' making 09 OOC _
the ucensing Board's ruling "len interlocutory" as each day panes. Compare Tennenee Valley Awhority (Phipps Bend Nuclear Plant, Units 1 and 2), ALAB-
~ ~ ~ - - - -
506, 8 NRC 533 (1978) (appeal board af6rms NEPA ruling on referral by licensing board, which in the interim completed the proceedag before it). Por the same reasons, pursuant to 10 C.F.R. 62.785(d), we certify our ruling to the Commission for its Anal determinabon.'
We turn next to applicant's argument that neither we nor the Licensing Board has jurisdiction to entertain Envimamental Contention 1. As applicant sees it.
our decisions in ALAB 869 and ALAB-876 - which became Anal over a year _
ago - held the contention here at issue inadmissible as a maner of law, and -
that ruling is binding. '!he short answer to applicant is that the contention, e albeit similar to that considered in ALAB-869 and ALAB-876,'was nonetheless somewhat enhanced and was proffered in response to the July 1988 issuance of -
the staff's EA. Although in the context of our discussion of another contenuon, in ALAB-869 we expressly r==abad the intervenors' right to submit to the' Licensing Board contenuons based on the staff's EA, provided that they satisfy the standards for late 6 led contentions in 10 C.F.R. I 2.714(a)(1). 26 NRC at 34.
1
'Ihus, the record on NEPA issues clearly rumained open before the Licensing --
Board and it had jurisdiction to entertain such contentions. The Board likewise had authority to rule on requests for reconsideration ofits decision regardmg EA-prompted contentions. Our authority to review the matter through the mechanism of referral necessarily follows?
'Ihe last procedural maner involved here concerns whether Environmental l
Contention 1 is, in fact,." late Bled,".and, if so, whether NECNP and the
~i Commonwealth have satis 6ed the Commission's ra; '
=r-- for consideration l
[O Q e e o.0 O ec4 1
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$$l by oceaegy suhag en the.
. bis saying he enest and safemag the simmer to us.
Oeeeeet s
i e
a
of late.61ed e-M See 10 C.F.R. Il 2.714(b), 2.714(a)(1).81he Licensing Oeooeoei Sard 'aad *" "" ***aaa 5* "*ada 'r *'adna' 'a ** 'ub'ala*d = **
g g ggg outset of the proceeding and, hence, should not be regarded as late 6ted." LBP-ggggg g 89 6, 29 NRC at 131, As for what it termeo " minor changes," however, the DeeO099Q f, T' 3 7, f e Ave w e e 2 m a n m a m e u m ONOOOO 4 IOOOOOOO As we have noted,,,r, pp. 36, 39, Environmental Contention 1 was 000e e e O (
prompted by the staff's July 1988 EA and cmtained some new material. The
>G@OOOO@
Commission's nuies or Fractice are cioar inat any comenison 6ied iaier than Afieen (15) days prior to the holding of the special prehearing conferen:e...
or where no special prehearing conference is held,6fteen (15) days prior to the holding of the 6rst prehearing conference
- is nontimely and cm be admined only upon a balancing of the 8ve lateness factors." pmNk Servke Co. of #cw Nampskre (Seabrook Station, Units 1 and 2), ALAB 918,29 NRC 473,480 (1989) (citing 10 C.F.R. 52.714(b); emphasis in original). See also (Nd (citing Duke power Co. (Catawba Nuclear Stalon, Units 1 and 2), CL18319,17 NRC 10'1,1046 47 (1983)). The dme for Aling rententions here expired in early 1987, as NECNP and the Commonwealth themselves recognized in their August 1$.1988, "Joira Motiort.,, for Leave to Pile tale Filed Contentions."
We therefore agree with the staff that the Licensing Board erred in concluding that Environmental Comention I should not be regarded as late Aled under the Commission's rules.
The balancing of the 6ve factors nevertheless undertaken by the Licensing Board in this regard was thus necessary. Although the Board gave this mauer only cursory treatment - failing even to mention factors two and four - we agree with the Board's conclusion (if not its analysis) that the Ave factors balance -
in the intervonors' favor, in light of our ultimate ruling on the admissibility of the contention, we need not discuss this aspect of the Licensing Board's -
opinion, except for one matter that warrants suention. Finding in favor of the interven :rs on the third factor of section 2.714(a)(1), the Board stated that "both NECNP and Massachuseus have rendered signincant assistance in developing an adequate record on other contentions, and we have no teason to expect that they would not do so here." LBP 89 6,29 NRC at 132 *!he Board's conclusion about the intervenors' ability "to assist in developing a sound record" rests on an wT"u m
_., mas es _.e w,.,um _,...
j 7;
(0 osed eeuse, tr omy, rar hDue in sie en einie.
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'5' (60
- Die eveDehiluy er saha means whoseby the patienener's isissest wiu be pnessied Yd N estas whida the p.ihamer's peniayanan sney senessably be empened to e.asi in x = -.whiam,
s.r. - wm6es.,,es 7
g -- M. -.. y;
{ # 'his 88 F8""*8 P.msipeman win banden the tuan er deby the possedins
~ %$$S'SD 1 40 D
a
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improper inference that NRC case law and the recad here do not permit to bc dr**"
3""*" " "ar "'" add'""'d 'hi' '"' '" P'""','i"8 5"'"'""'*1 l
M@OOOOt Contention 1. See Late Contention Modon at 710. Thus they have clearly g ggggg failed to satisfy the burden imposed on them try the third criterion to " set out H ggggggg with as much particularity as possible the paciae issues [they plan] to cover, i
f6OOOG9O identify {their) prospective witnesses, and summarise their proposed testimony."
l i
OO OI Mississippi romer & Ught Co. (Orand Gulf Nuclear Station, Units 1 and 2),
OOOGee ALAB 704,16 NRC 1725,1730 (19:2), and ca ciied. if "tviague assertions JOOOO S O l regarding petitioner's ability or resources,,, are insuf6cient," hid., so too are 800@Oeee n, asse,sions As noted above, the contendon here at issue has had several in-B.I.
carnations. When originally proffered as separate contentions by NECNP and l
the Commonwealth, their postulated accident sequence was: (1) an unspect.
l 6edd severe reactor accident that genmuss substantial amounts of hydrogen; (2) hydrogen rencase through the Mark I containment to the reactor building; l
(3) hydrogen burn or detonation that creates pressure and threatens the strue.
tural integrity of the " containment building"; (4) damage to the spent fuel pool cooling system or the pool structure itself, which are located in the reactor building; (5) inadequate pool cooling; and (6) increased radiological releases due to increased spent fuel inventory. See ALAB-869,26 NRC at 36 38. See also LBP 8717,25 NRC at 854,845. NECNP's version of the contention relied i
on NUREO 1150 and NURE0fR 4624, incorporadng by reference its citation to these documents in another contention. See NECNP's Response to Board Order 1 Pebruary 27,1987: Statement of Contentions and Standing (March 30,199/;. t 810, 2 4. As explained apre pp. 35 36, the Licensing Board admitted the contention and we reversed.
Following the issuance of the staff's EA, when NECNP and the Common-r wealth jointly tendered their late Bied coruentions, the contention again focused on an unspecl6ed, hypothesised reactor accident, involving subs'ential fuel dam-r age and hydiogen leaks to the reactor building, as the triggering event. The contention and its basis, however, also referred to " pool heatup due to loss of cooling water circulation capability, resulting in a self sustaining oxidation of the Zircaloy cladding (i.e. a cladding 6 e) or a cladding rupturt," and alleged i
t
" severe long term health effects." *the contention relied on the BNL Report l.
y a ' **"
generally and two pages of NUREO 1150. late Contention Motion at 13, 'the DCCteA.'01 I
'assene hearvens was same a this esen, we emed est desses whahar if any had ethnast6vely sehad en their ementenans en seer eenannens in sus very paesemens (as the IJans need ennemed am ther g-s emmaar eensibuom was hkely to to meds a the asw e Jar pew Co. K:sesste S
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Nualear station, Unas I and 2). ALAa-sl3. 22 retC 59, s$ 09:5) (einse IMashisepass Pubhe Prior s,yply Jgiemi(WPPas Nuclear Pmject Na 3), A1Aa447,il NhC 1167, list 09:3)), _
That is, no esplaneum er bner samhne as to how this sessier sendes s.ishi esaur is pnmdest 3
s 41 f
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- - ~ ~...
_ _ _ _. _.._. _. _ _, _..__. _._.. _,,_,.... _ _..,. _ _..._ _,_,-. ~.-
i Licensing Board rejected the contendon on the basis of our prior decisions in
@keA6) O O O g d ALAB 869 and ALAB 876. See arr8 p. 37.
peg S Ol When NECNP and the Commtewealth subsequently asked thft Licensing
>@9OO9SS Board to reconsider its rejection of the contention in light of the Ninth Circuit's si,,,, C,,3 decision, ihey en -m.hed the comention somewhat. De iriggering e
COOOOGGi eveni, howe,er,,emained consient _ an unspecined, hypoihoocai, aciar
$ MOSOO accident involving hydrogen generation, failure of the Mark I containment, eOO O 99 O 4 p@COOSSU and hydrogen detonation in the reactor building, whidi also houses the spent i
fuel pool. His accident in turn allegedly would threaten the pool cooling i
OeoO909i water systems or pool structure itself, leading to pool heatup and ultimately a i
r.ircaloy cladding Arc. Again, the contention relied on the BNL Report in general and speel6ed pages of NURBO ilSO and NUREO/CR 4624. Joint Monon for i
Reconsideration at 3 5.
For purposes of this decision, the contention (and basis) at issue is that set out in NECNP's and the Commonwealth's Joint Motion for Reconsideration
{
i (also included in NECNP's brief)." Although NECNP and the Commonwealth were not free to embellish or to change their contention when they sought reconsideration from the Licensing Board in December 1988,u we have given them the beneat of the doubt in this regard, inasmuch as their embellishments to the comention do not affect the outcome here. Dis should not be construed, however, as a condonation of any future anampts to modify contentions during j
an NRC adjudication without cause and observance of the Commission's Rules of Practice. Comentions are simply the issues that denne the scope and course r
i of the proceeding. Tb permit reformulasian of contentions every time their L
proponents Ele another pleading would be tantamount to rejecting all notions of an orderly and fair administrative proccu.
- 2. Under the Commission's regulations, no environmental impact statement is automatically required for operating bcense amendments like that involved here, See 10 C.F.R. 4 51.20, Instead, either an environmental assessment (sec 10 C.F.R. 651.14(a)) is required, or the action is a " categorical exclusion" for which no environmental document is required. See 10 C.F.R. Il51.21, 51.22(c)(9). De Commission has stressed, however, that the staff should i
consider on a case by case basis the matter of whether a particular spent fuel poc1 rerndting amendment warrants an EIS. Pac #ic Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units I and 2), CL18612, 24 NRC 1,12 O~ O'O Q '
rev'd on other srounds a+ nom. San fas ouspo Afotherstor Peace v. NRC,
.4 799 F.2d 1268 (9th Cir.1986)." As noted earlier, the staff here prepared an
+
(
EOES II The asmsessman ans bases ess upsedtseed in hiB in die Appendia se 9ds apunen, dq% pp. s2 s3.
I
,gg g i u That own laus ndmeien for Rassendesomen et steams uist es -- is NessumaDy as reuoos."
As wo ese me.hoem, no MS han been papesed lur any apes ruel poet suesWes bsense sonendmms mesee 42 9
r I
e c.
-..~.
A.-.
i i
i environmental assessment and concluded, pursuset to 10 C.F.R. 4 51.31, ist l
the involved expansion of the capacity of the Vermont Yankee spent fuel puol g
gg j I
l will have no sign 16 cant impact on the quality of the human environment. See g
53 Fed. Reg. 28,925 (1988).
I
%e essence of Environmental Contention 1 however, is that an environmen-i OO tal impact statement is required for the proposed license amendment to assess l
the risks of the following hypothetical accident scenario: (1) a severe reac-l O
I tar accident occurs by some unidentiAed mechanism and involves substantial lINOOOOOI fuel damage, hydrogen generation, Mark I containment failure, and subsequent NOOOOOOp detonation in the reactor building where the Veemont Yankee spent fuel pool
[
is located; (2) the reactor building and the spent fuel pool are assertedly not
-i i
likely to withstand the pressure and temperature loads generated by such an ac-i cident, thereby threatening the pool cooling systems or pool structue itself (see NUREO 1150 at 4 33 to 4 39 and NURBO/CR 4624, Vol.1, at 4 26 to 4 62);
t and (3) pool heatup occurs, resulting in a self sustaining sin:aloy cladding Are with increased long-term health effects for the public from the increased fuel i
l pool inventory (see BNL Report). See Appendix, ipa pp. $2 53. Although 3
the contention refers only to " pool heatup," the sine gas non of the postulated zircaloy Arc is the aboence of water. Therefore, the penuhlmate event in the i
contention's accident scenario is riarmanarily a complete loss of water from the pool. See BNL Report at 111."
I It should 30 without saying that reactors and spent fuel pools se not expected to have accidents, or a series of accidents, like that set forth in this contention.
For example, the Commission's regulations set standards far the contml of the hydrogen that may be generated in the event of a serious reactor accident. See 10 C.F.R. I 50.44. Nrther, spent fuel pools must be designed "to psevent
^
signLAcant reduction in fuel storage coolant inventory under accident conditions."
10 C.F.R. Part 50, Appendix A, General Design Criterion 61. Derefore, the scenario on which the contention is promised is obviously not a " normal" operating event; indeed, it can be fairly characterized as a double " worst case" accident - (1) a severe hydrogen genevating and detonating reactor accident, that somehow leads to (2) a grass loss of spent fuel pool water and subsequent zircaloy Arc. In other words, the two accidents at the heart of the contention are individually among the worst things that can even be hypothesized for a teactor il"'"'"'"'"""'"""*
and a spent fuel pool, respectively, in terms of potentially signi6 cant offsite l
44OO94 consequences for the public."
1 9O 94 1
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s.,
WD l
g~g g a % as,. stets 1 u asa u..wuncwr
)
w.
im e,,
a a
u emendu.s analy.ed) as. qui.s asireresan and sound peasanDy (under use..me aum.u,tems) be at=na===
- M st l
asi (anylmas added).
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s The Commission's Rules of Practice require that contentions have " bases" t
i and that such bases be " set forth with masonable speci6 city." 10 C.F.R.
I O O O M O Ol
$ 2.714(b). It necessarily follows that, when a postulated accident scenario I
DS M S4 provides the premise for a contention, a causative mechanism for the accident lemoseel must be described and seine credibie ensis for a must be provided. See, e.g.,
DeSOOS S 4 Metropolitan Edisoa Co. (7hree Mile Island Nuclear Station Unit No.1), CLI-l G Oj 8016,11 NRC 674, 675 (1980); PMlade5Ma Electric Co. (Limerick Generating '
t
'g g 3gg Station, Units I and 2), ALAB 765,19 NRC 645, 653 54 (1984), petition
~
OOOOG#0
/*' "d'* d'ad '"6 **" ^"*"y v. NAC, 770 F.2d 1066 (3d Cir.1985)
D000600E
(b'*) l' ' *""'*"" " ''"' '" '" EIS is necessary or inadequaie in some respect, the "ruk of reason" by which NEPA is to be interpreted provides that --
l agencies need not consider " remote and speculative risks" or " events whose probabilities they believe to be inconsequentially small." Limerick Ecology l
Action. Inc. v. NAC, 869 F.2d 719, 739 (3d Cir.1989) [ hereinafter cited as -
" LEA"); San Luis Obispo,751 F.2d at 1300. In addition, the Supreme Court has recently held that neither NEPA, the case law based thereon, nor regulations t
of the Council on Environmental Quality (CEQ) require a " worst case analysis."
t Robertson v. Methow Valley Citisens Council, 490 U.S.
,104 L. Ed. 2d 351, 372 74 (1989)." "Ihe Court reached this conclusion in a case involving substantiq uncertainties in the assessment of certain environmental impacts that might be adisociated with the recreational development of a national forest area.
See id. at 3674.Jt is therefcre within the context of these agency requirements and judicial interpretations of NEPA that we evaluate the admissibility of the contention before us.
- 3. NECNP claims that the causative me&anism and bases for the accident scenario on which Environunental Contention 1 is premised are found in several NRC documents, principally the BNL Report, NUREO.ll50, and NUREO/CR-4624. It also argues that, under tha. Ninth Circult's Sierra Club decision ordering the admission of an asserted $himilar zircaloy Are contention, the contention's mere reference to the BNL Report satis 6es the Commission's bases and speel6 city requirements. 7brther, NECNP contends that the Third Circult's LEA decision expands Sierra C/sb and reinforces an iruervenor's right to litigate the NRC's compliance with NEPA. In its view, LEA prohibits the agency from relying on a policy statement to preclude litigation of such issues or to define certain accidents generically as remote and speculative. See generally NECNP's m
a OO leWuhaus omsb e hemis aquemmet. ISC e4meneury passesdags asund basene as -
MM knesmas any bismes sendus that a pony eeuW esmoest
? rurwa for gj "We ames that, in any suma, the Commuseum has esehead to edsps nihanannive (3Q vaplauses (see 49 Fed. Ilsg. M52 MS6 0984)). sad at least amo esmet has ^- " ' 'the Commmamam s acht to do so. II.A.
t SM se F.2d at 14. The aussues Cenn has leh eyes the issus stienhor (3Q soplomass ese bindes en independent g*g commass liks the 70tC. solhatore oss and MacMe Co. v. Nearef Aesserser f4fense Coundi. Jac 462 U.s. s7 M s12 (IM3).
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t 5
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I J
l i
Brief (March 29,1989). Wkh respect to the Supreme Court's recent Robertson dechion, NECNP argues diet k is krelevant to this case. As NECNP sees it, l
DOOOSOeC
'"' " **" "' " "*h" ** ""P"' # * 'P"' '"' P**' "" " '" "*'Y S O.04S e OI
'""" ele, and aus saluims the rg= d m EIS - nm the natum d k DOOOSeea
""Y"aluimd once wh a deerminaion b made." NECNFs Mornwandum signiacance of Recat supreme Court pecisions cuay 25,1989)
SOO O O e 6,4 A
%%g,
eOOOee04 Comrary to NBCNFs claims, upon scrunny the documents on which Envi-Die O O e e O E ronmeial comention I miies for iis suppon do not provide bases for s lidsable 4OOOeoeI comendon or ine.cident scenario pa.**M Ahhough the BNL Report ad-dresses several different accident scenarios, all cakninating in a complete loss of pool water and a zircaloy cladding Arc, none involves the serious reactor acci-dont and sesukant hydrogen detonation that serve as the triggering event for the Enyhontnental Contention 1 accident scenario."'!he w.
i.k i does mention
" pool heatup due to noss of cooling water chculadon capability" (see Appendix, h fra p. 52), which is one of the accident scenarios considered in the BNL Re-i port." 'that report heelf, however, assumed that such disruption of pool cooling water circulation would be "due to stadon blackout, pump failure, pipe rupture,
- etc " and that the pool temperature would rise steadily until boiling begins. In the most " pessimistic case," the water level would drop slowly, at about six inches per hour. BNL Report at 15. No mention is made of any type of serious reactor accident with hydrogen detonation - an event of an obviously different i
nature entirely - as a cause of disruption of spent fuel pool cooling circula-I tion, But mac important, the BNL Report concludes that "[a)ccidents leading to complete pool draining that might be initiated by loss of cooling water cir.
+
7tes may aplain why du semann hDs in eles any penaler pages er penime af es 164 pass aNL aspmL M
- The sumsman makes as sammen elmosme et ein seur essenes essaidmed in the nNL aspeut, namely, mmsenet past fanno dus to ammans sumus er monstem. pen'al diedadnes due se pasemans seal $sihue, and suusanal poet hihme ese w a huevy led emp6 Canyere mE aspen et als wah Appendia.dqMs m 52-53. In he knsf. hausser. NbodP mammans far eie seu tems e esammenay.isdaisend span snel peal esadas (as appened is the senes mamar assides biinemme essa diet has heum the esmalmas feasi pass of th6 aussanna in en of hs isnns, ase myre pp. 41.d2). It does se in emannan whh the IJuannae aspot (NUms00L.5176), which was meds esegshis selselvely usualy vis a head eseitamen. 3809 eleins tist dist sapen (at tisi and 6 6) aunabade that the psehah0My and ask af a esimesseDr.iniusend syns fuel post falhas nuading se a aalfeunakung usanner eladdag tse ese game than pensunny idsmited. thmshy senhor am the examanen. NBO4P's y
nest et 910 m.12,30 n.96. 30.
lin uvenness aspot uno ymmmay undenshan ts sospense is the nNL aspen's sading that a==ny.
n.- w
' -]
inamed 'Cl"sen,i p sense is as emanmu enesmuner w siet. li amanyons used"a".,in sus aged et fus LLq. -4 Oi whah h ym.m. we u.a.msse me,an ns es (ei s>
as ese uis a en m u. a -. ihai t
the pubhe sensapusases of e miseeney ese asund to espiiAsesL ladeed, tint paha has mover hamn in dupuu and gg(l demanness why e steeley an is inesse e *wami sess" assident ses myes p. 45. an es uvennen asynt
.O see en to and mi en hems et he anniyou that en pseehike et summseny.immuned spas sent poet reinem a Venness Yahms is asamDy les than had pensuely been enamed by nNL (sedened a by maher a *um gg smour sandy"). uvennen mapan et alii. It thus ameindes that *emmuis rist summeuman han spas fust pesi suusemal feihuss is angdiedhdy ansN.* M et e-2 (emphens added). (nessene asit is the pseena of emmequeens and puhahmey, esas when the sumsspues et a wasa esas assides asund be lays,it the pubstany er such an essesmise is enemanly near, tes sink wSI W be guins now as setL) Thus, the Uvenmuse Espen nenhar g-suppens en esammen esanaby subudmed to the usemang nossd nur mys what NBCNP clasms b esys.
hhNh k
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i t
DOSOOOO conlariasi capability.. were found to have a very low likelihood." 14. at mix 88 l
SMMO O NBCNP directs us to nothing else that singgests otherwise. Mrthermore, this low WMS O 4 probability event involving slow pool drainage is not a dominant contributor to S'9 0 O O G GI risk (see id, at 23) and hence was not even considered in that portion of the BNL
{
W 6 O(
Report devoted to fuel claddag failure and the zircaloy fire process. See id. at
@N 9 01 xiii. 49 50 (key assumption of fuel cladding failure analysis is insianianeous gO(
drainage Dom pool) '!hus, on itsface one of the key documents on wAlch l
gg g g NECNP relies provides no basis for the admission of a litigable contention.8 i
NUREO 1150 and NUREGER-4624 likewise do not support Environmental 7
Contention 1.
As NBCNP notes, NURBO IISO does indeed describe the vulnerability of Mark I containments (like that at Vermont Yankee) in the event of a severe reactor accident involving, for example, core damage (i.e., melting).
NUREO il50 at 4 33 to 4 35. NUREOCR 4624 analyses several similar severe accident scenarios for Mark I reactors and also concludes that the ability of the secondary containment (i.e., the surrounding reactor building) to withstand the pressure loadings from such accidents is questionable. See NUREOSR.
4624, Vol.1, at 4 26 to 4 62, especiauy 437,445. But neither document even mentions (at the pages cited by NECNP or anywhere), let alone analyses, what effect such a reactor accident might have on the facility's spent fuel pool structure or pool cooling system, which is the subject of the particular license amendment application before us here.8 Moreover, notwithstanding the concerns aired in NURBO 1150 regarding the vulnerability of the Mark I containment in i
the event of a severe reactor accident, the analyses of a core damage accident in that document show that the likelihood of such an accident is itself very low
+
- e this summessen. the sapen shamwu that me real honesp omens en en sessed ther appuunnaisi; 1000 U
i seamer yees af ensatensk BNL asput et 15.
81 At smal espumma, apphoemt aggened that MUR301353 (also sessved smaastly vis band mandesman) emmeeDy sepm6sen the aNL aspen and themby alumnases any hans far the summ App. Tr.1316.
see we pp 44 4. Tbs sudr den met any en the subasmes of NURBS1333 ha ater nynne he penapal eigement that Eswbuensuunt Commme I febs es snelsry the t'
's sequhanesma for whiy and mass tis NURho 135S
- dens asahine es eine ens detsamey,' NRC SiaR Respesas (nday 25,1989) et 2.
..,, l ISOdp espass that NLRBo 1333 does oss undsnuine subsr the BNL er IJuusnese Rapans and that h eens met eoo s o;oEe
'""' *' '*T"ll*s ".f. ':"O "r"'2':""'*" - "T?"J"*; 0 " 'J Nua.o-n.
I e, sis a, s
s.
. -l m.= e.m m as,um it -.e,ie -,e.e m.m.i md.
NLRBo 1325 et asas, we saapus widt opphoma that this desumast ennemas to e suym&ame af the SNL and lavenmase aspens. assher.k appens to aussyt the ameny of thess sepam as e means pass and then eensides "I
e eSasus issus enkely (ame emisimly not befan is ham): to wit. is any seguisissy eene assemesy w justined en e east-basat basist 1tum, beenues NURBG1333 is na dussity solemmt bass and indeed is est absd a by
$$j PSCNP as pueriens esppet far Eswuummunal Osammen 1. k womens me funhar eenodesstian.
8 g
1m this sagesd. NURBQG d634 et S 12. 4-37 asass the niange fmgiimy of las master bu0das. ells, whuses -
ihe aNL aspen et 16 safem to 'iks spanise salmfused sensues struseus" af spuu fuel pools and ther *eauemely I
unthely" massemel falhmL ses she IJuanasus sepan et S 1. S-2 (Vennest Yuses spent ruel poet seer is over
'S OUW.99 0 l
' "" * '""'".'d.'. ".' "a "n.inisms assi,' ism a e u.e'"" '" "' "" '" "i **
g ns es. d t. 6 fest 46
}
e r
4, r
l i
l 1
l 1
i l
(see, e.g., NUREO 1150 m ES 4, ES 5),# and, apala, NECNP directs us to
,OO@Oeoe i nothing hat renects the contrary.
!DOOeOSSe in sum, none of the documents on which NECNP relies suppons the lO0000eoe c= worst eme accident scenario on which Environmental Contention 1 is based. But more important, those documents themselves re$ect the view l
- DC @ O O e e G that the accident scenarios analysed therein are individually events of very low
!00000eo(
P'obability. Envimamenial Coniention i sirings these individual events together t
pGeOOeeG a dinin of causation that is necessarily of even lower likelihood. We thus int
.OOOOee o e
'"aciude = m bmis f NECNP's own subininions em a risk paed by =
300 O O O e o' multiple event accident scenario in Environmental Contention 1 is remote and 1
speculative. NEPA therefore does not mandate that it be analyzed in an EIS.
~ ~ ~ ^ ^ ~ ~ -
NECNP argues, however, that, under the Ninth Circuit's Sierra Club decision i
ordering the admission of an assertedly similar tiscaloy Arc contention, the contention's more reference to the BNL Report alone sans6es the Commission's l
contention admission requirements. But that case is distinguishable and, further, -
the court's decision is grounded in a misunderstanding of the nature and scope of an adjudicatory board's inquiry at the contantion admission stage.
In the Brst place, the Ninth Circuit never even considered whether the contendon there at issue concerned a remote and speculative risk beyond NEPA's rule of reason, overlooking entirely that portion of our decision in Diablo Canyon, ALAB480,26 NRC at 457 60. Instead (as pertinent here), the court focused only on whether we had correedy applied the Commission's bases and specincity requirements to the involved contention, 862 F.2d at 227 28. The court conceded that "the contendon itself did not contain any specl6c accident ncenario," but it went on to assume sua sponte that the Sierra Club had simply intended to litigate all of the accident scenarios analysed in the BNL Report cited i
in the contendon 14. at 227. Here, in contrast, NECNP and the Commonwealth have been adamant fmm the Arst time they tendered a variation of Environmental Contention 1 that it was based on a serious reactor accident involving hydrogen l
detonation in the reactor building. See supra pp. 4142.8 As explained above, the BNL Report analyses no such accident scenario. It wuld be both contrary l'
lo the Commission's Rules of Practice and unfair to the other parties to this proceeding to rewrite Envienmental Contendon 1 and pretend now that the contention is about something other than it is.
.z.-
DOOOOO 1
= we oss emi, er os a,e,i s e. sire.d a Nummatis0. h as.es.hs is. swa.Wi. u.* i esusausmaus Who Vermaus Yankee, has the lowest one esmaps aequemy. NUnac i150 et as 5.
J 8'indeed, seier than he seremanes to e amoansy elsetas ass, the esammen et tesw in DisNp Cepen team hans sessuhlsass to that tavalved hues Ass DesNP (Supes. AIda-sS0,26 NaC et 45455. Ase else id et 460 '
l mem6 W
teseh6 the essneuhat sessent hypsihuaissa essWas esamme" tevehad in Yesument Festse. AtAn set). 'nne, e Nunn asemi's domme emeld huey he entensmanDy *mmmense"- u NBCNP wpies - en uw ANeus
- - yesammed ham, natur, as appheus youns ess. Sisme C&s6 is husens only in ths Nunh Cuaun.
and enr-has espassed no view an.hseur a heads no *esemeses* 6n en dommen ensomhus Dv._
99661 47 b
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l De Ninth Circuit also labored under some erroneous impressions regarding 3
Iggg44@$
our consideration of the contention at issue in the Sierra Club case and Mg4 contentions in general. It believes that contentions that merely identify or refer gg to "particular documents or studies me suf6ciently 4pec(fic for the purposes of g g gg admission," and cites several of our decisions as authority for this view, 862 F.2d at 227 (emphasis added). De court also appears to believe that a review of
-Mggl a contention's bases (includirig any referenced documents), in order to ascertain g
if the contention even raises an issue that may properly be litigated under the Commission's rules and policies, amounts to a determination on the merits of the contention. Id. at 228.
- - " " ' " " ' ~
Whether the reference to a particular document or part thereof is suf6ciently I
spec (fic to allow a board and the parties to retrieve it is one thing. See, e.g.,
PAlladelpMa Electric Co. (Limeridt Generating Station, Units 1 and 2), ALAB-804,21 NRC 587. 592 & n.6 (1985), But whether a document on its face appears to provide a basis for the point for which it is cited and raises a justiciable issue is quite another, Tb be sure, boards should not make a judgment as to what weight should be given to a document on which a contention is based, as though it were a piece of evidence, but rather should take it at the face value its proponent urges.ms Tb do the former would be tantamount to a " merits" determination prohibited by Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB 590,11 NRC 542,547 49 (1980). On the other hand, contrary to what the Ninth Circuit seemingly believes is required by NRC precedent, boards must do more than uncritically accept a party's mere assertion Ilat a particular document supplies the basis for its contention, without even reviewing the document itself to determine if it in fact says what the party claims it says and if it appears to support a litigable contention. Ot.herwise, the contention.
admission inquiry would be a meaningless exercise.85 Rus, licensing boards are expected to undertake a thoughtfid, albeit non-merits, review of any document, information, theory, postulated accident scc-nario, etc., that is claimed to provide the basis for a contention. See, e.g.,,
Limerick, ALAB 904,21 NRC at $93 94 (because cited environmental docu-ment "does not support the point for which it is urged," contention thus lacks a " cognizable basis")? Dis review may even include consideration of the fact that the underpinnings of the document on which a contention is based have 1
D:O O e O O.9 4 g
- aanses, or eeums, ese met edged is take et inse natus etsvimely spaams desumisnas.
88 I
As se usand sane Is yease age, des papaso er the beam and agesumous is 'ne help enswo at en planans senes diet the hesmas pseems is est
.l y
." "" ' ', '_1 Mespec Co. (pench neuem g
Aamunac humer sessian.Unho 2 and 3), ALAa 216, 1s,20, assalq$sd on esAwrgoesadr QJ 74 32, s ABC 211 (17)4) seek e esimnusman sammt nessushly be smede er the samemen and in tasas ese est semismand YM N
k 8 Tha
'i_f tJemmang aansd's ;
fans for sheet er.ihe esay v.res se
.e tenhought that anelsesmiessel Cum.amme I was *(s,gpamed b.y appn>
g
.s.r -
. e s wn.,e a.sO 9 like the contenuon proponents in each of the cases di=>saad above, intervenors l
l N ~O have failed to meet their initial burden of showing some ostensible connection between a litigable coniention and its claimed support.
jgggggg The Third Circuit's decision in LEA also does not require admission of En-vironmental Contention 1.8 in IJmerick, ALAB 819, 22 NRC at 693-94, we 7
gg found that a contention that sought consideration in an EIS of certain design gg ahernatives for the mitigation of severe reactor accidents satis 6ed the Com-gg mission's bases and speciacity requirements. See apre p. 49. We concluded, J
however, that admission and litigation of the contention were precluded by the
- - - ' ~ ~
Commission's 1985 Severe Accident Policy Statement, mera p. 37. 22 NRC at 695 96. *Ihe Third Circuit determined that that policy statement was entitled to no deference, that it failed to give adequate consideration to severe accident mit-igation design alternatives (SAMDAs), and that SAMDAs could not be treated I
generically. The court also held that meeting Atomic Energy Act requirements does not exempt the Commission from complying with NEPA. And, Anding the record ambiguous, the court opined that the Commission could not pmperly exclude consideration of SAMDAs on the basis of a generic inding that the risks of severe accidents are remote and speculative. 869 P.2d at 733 41.
We agree with both the staff and NECNP that one aspect of the IEA decision does undercut the primary underpinning of ALAB 869 and ALAB 876. In those opinions, we clearly relied on the Commission's long standing distinction between so called " design-basis" and "beyond design-basis" events and its expert technical judgment that the latter are, by de6nition, remote and speculative and thus beyond NEPA's mandate. See ALAB 869,26 NRC at 30 311 ALAB 876, 26 NRC at 283-85.81his distinction re6ects the very essence of the assacy's 8 m 1:4 d m.an andmed ennlaP.s% ens es us seis anse es sim d== ma ede=s k.
- we ed not any, however, en the sevus Aesidem Peiny suismes in missing em enemman The only misman af Gio sevue Acadamt puhey siaismen in ALAR ses is in sw summary of Gas Usenans asure 2
domsten hefere us for soview. 36 PGtC se 29. ' Die only safeemos to sus pokey easianum in ALAa-s76 is a '3ee pens,epf suemon duemass en sender to a dusssipman of a suvue, hayend desipi-hums esadma. That past of 9 e pahey pahihimse baisemen of sovas condma swegation sammen in bemans puessednes (50 Fet ass a 32,145) was met enst 26 PGLC at 3s3.
The ha-mar asasd, en the asher hand,has Paay sahed a the sesse Assedes 7bimy sesimmes in tais
- "1 ease end, in inn, heheves that we have met pven les denouns approposes essenen in ens sepsd. Joe. e.g.,12P.
s94,29 PGLC a 13344,12P48 26, al Po i
n,G'" S.0,0 0 <
- An--ey, ===,d h.h
.tC a 458 54. Funkly, se have had ddBaday in feueoue en se.ursc- =-,-m mais., s war m me Plass Assadme - a==== Under the Nanamal novuemammal Pubey As af less.* 45 t'et est 40,10109:0) r m
M.
Ihanninhar ehed as'95LPA Pahey sammaest"). hme hs 19s5 ssene Aandma Pthey sessansmL Uudes ths NapA Petery smemmes the Comunission eenodes the awbuumamat maks of boyend desig> basis esadmus in iniaist l
~
epenang hemes ymsesdags as a mener of dsessaies, sehr then as a seguisemass af NBFA. See sen imir okspo.751 F.2d et 1301. In edesmisms the NEPA Pnhey sessunas in AIAa44s. 36 Nhc et 31. we found no i
og e
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regulatory philosophy and scheme and had not bem senously questioned by any l
OQ@gggg court until LEA. Indeed, in Sei Luis ONspo,751 F.2d at 1300-01, the District r0OOOOg of Columbia Circuit clearly endorsed it.
%ggggggg in IMs decision on NECNP's enhanood Environmental Contention 1, however, f
i b O~O O O S O q we need a t and d n neJy a any sowie andings, deannions, or Canuninim p licy in 6nding that the comention is based on a remote and speculative accident l
.SOOOeSO scenario and thus is inadmissible. As discussed apre pp. 4546, 4647s the
^
D0,OOeSO4 very documers on which NECNP relies conclude thu h venous elements of MOOOOOO the accident scenario on which the contention is based se individually events pO@OSoei of very iow,,obabiiity NECNP has given.s no cause io doubi ihat, i hen to8 ether as set forth in Envimamental Contention 1, these events become even more remote.
If the " rule of reason" is to have any meaning at all, it surely permits the r
rejection at the threshold of a contention in these circumstances. Indeed, another l
portion of the LEA decision so holds. The court afErmed our rejection at the threshold of a NEPA contention that sougle consideration in an Els of the risk of sabotage. Our rejection of the contention rested on the materials and argument presented by the intervenor in support of its contention, and the intervenor's failure to cast serious doubt on the agency's inability to address the uncertainties l
in the environmental analysis requested. De court upheld our judgment that the contention was nonlitigable.as a legitianate scientiac determination within the acknowledged area of the agency's expertise. 869 P.2d at 74144.
Finally, the Supreme Court's recent ruling in the Robersson case that NEPA i
requires no worst case analysis is not " irrelevant," as NECNP argues. While the procedural context and factual circumstances of that case differ f om those here, the Court's "bouom line" sends a clear message. In ligla of the fact i
that Environmental Contention 1 is beed on the sequential occunence of twn j
worst case accidents, the admission and consideration of the contention cannot r
reasonnbly be squared with Robertson #
cas sam ii.e. ie enind u.sme.my paney a ns.m.s.s.o.a.se n.
assed.
bouever, appena to sad that hamn by higdiesman an en samme Assums sessumsmL sesIAP st b
i NaC at 13b% % mass oly that the '- had the appesander to emon sur undumsadens of es sessh r
4 4'
of hs NEPA Pdicy seaisenes, has k deshmed seviser of both ALAa.ede and AIAa s4 e
SGS 74.0 e '
- i. e.y m m.e se,inesias $si r demie w dem set. as, emmes s ss e,.6s,.
"As aseed aqpre p. 45. NBCNP elmsas the issus hoe is whsher a shmalsy ses is seassashly 8mesesshis %
hows esmaluded en the bums of NBO4P's son asuneses and
' massaal ein t is ass. Alhaudi Ihs I
CsQ segulsen opensesBy upheld ts Ae6sresa b est handing a ths (see myse asas 17), car eensimman has is fuDy emasamma veh that supdsensuL k desass *sessenWy 8===
h* hspesas as thans *whosh have omsequsness, even if ther ps=hahnaw gf geguggges jg jgy,preesdsd abst she sashsh gahs deposer i
b seppersed 6, esadek saassk eindemos, e est tend es pee smynese, and n udshns she ads y sessen?
40 C.FJt. I1502.23(b)0) 09ss)(emphans added). As as hoes essa, NaCW has inDad to desube e seassuso esmens semsno sad to puerids e meebis bens far the ensamsham, tus smemms k a maner eremyness, boysed the rule of sesent l
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'!he 1.icensing Board's decision,1 BP 89 6, 29 NRC 127, is rewrmd; ggy g g g Environmental Contention I and so much of Environmental Contention 3 as j
lO DSSO is premised on a severe accident scenario are rejpesed. This ruling is cerf#ied i
to the Commission pursuant to 10 C.F.R. 6 2.785(d).
DOOOOOOk It is so ORDERED.
S000999 DOOOOGGf POR mE APPEA1, BOARD S O~O O S S OL 99COOODt eOOOOOW 86'" ^ *"8*i"8 i
Secretary to the Appeal Board APPENDIX NECNP's Ennronmensa! Consendon 1 (as set forth in the Joint Motion of NECNP and the C==maawealth of Massachusetts for Reconsideration (Decem.
ber 30,195L8) at 3 5) he Envirauneme! Assessmem papemi by the Sieff feds to omsider abe canesqueness and risks posed by the proposed eenentnam of a i,, '
'sonden (hydrogen desenstan in the seactor teauding), soeukas in a selfasesining eiscelay sinddag An in a spess fuel
]
pool, which==1d be gamer then thou pavionely emisesed in omsnme wkh the Vanes Yankee resetor. This risk is suf6cism to eensiliues the papeeed esnandeset as e 'sasser l
federal action signi6eendy effeaing ibe envisuuness" sogense the pauperesse and isemanes cf an linvissementalIngeet Sissemos pior to appemet d the amendsment Basis m Nee el -,.ucy i n ~ ~ -.,.
metal impact stesament deceiling, inw elis. the envuonmanal hapnet of the poposal and considering ahernatives, for any
- major fedesel estion eipl6eendy effessing die qualisy of the human environment" 42 U.S.C. 54332(C). De poposed - *
. whidi would I
substantially increase the risk to pddic hoekh and esimy eseoemes' wkh spesesion af the J
Wrmon Yankee Plant, is such an eenian. he NRC has met peopmed en anvhenannial impact sistemem, as voquired by law and by 10 C.F.It. illeic) 51.30.
i 1
he Envisunionial Aseeennem peepend by the NRC insaneedy eeneludes shot no on.
vivenmental inipact sneesmem is seguimd, based en a failuse to senseder eipi6eens eswi-
-w
-r-p'M g,g manus. hamnu immd by e pm,omd - e alfaammig einaksy einedag iO Ase. Accordmg to NUREGA3t.4982,"Sevose Accidesas in Spam Anal Ptmis in asypon of ommric seiny 1sene s2,* Beoekhove Nmenal tabermary Quly 1987), em pamanned eset initieng e sevem occident in a spans fuel pool leic) mengs pool includne pool beeng due to loss of coolie 6 weier eisctAssion espebGily, usund'6 n a self.susteniing enidosia of the i
Zircoloy cladding 6.e. e eledshag Am) or a steading nysure.
j he spam fuel pool at Vermont Yankee is loossed inside the seassor huudings (sic).
he NRC's most recent risk animme for the h-suuseum of the Geneml Elecinc Mark I plants, sudi es Vermost Yankee, is that they en es likely as not to feu in a seven OO i 52 4
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accident.8 Neidier the seactor buGdag, dish suressnes the span fuel pool, ser the spent
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fuel pod heelf,6s desiped to wishetend the pecesure end tempemeus needs that eauld be g
saa '='d ia 'a= ihe ' aaa'
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- a ====**== $a"- . ih* 'r'= ' pa'i i
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f 406Se4 canetions associnand wieb eems eseidsens Such en easideas would thsessen the spam C000SeOl fusi poa o,,a sg e.nor ne si h.epray of =,esi, *Ge -.a r
'SOOOSe4 prevennns access to the buGesag for sepairs or ensiden mitignien ontvines, due to the high
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.eused by ponie fusi ensa"'.'"id 6,"*.'go. seios. io me see.- mecens. *.e a' ** pea is :
pe;^'O 945= -- -,Oh loomd my inemesmg the amams of fuel moved by dos, on pasmiel eensequenau d e s
80G090e4
- a'a s-or *-* =8 -i' --a m i-s- = h d* *= 'a terms of radiation espoew
-_ f A self sustaining fuel cladens An in a apent fuel peel with high dansky tesking could elso be caused by en accident which involves subetsniial fuel damage without fuu core melt, if hydropa leaks to the menor tuadas..h NUkBO-lISO,Renaer Risk Refonnee Document, Dr ft for Oconmen, Feb,1987, et 444 and 445. 'this is within the desip basis for final damese, and could asuk in uvere longerm heehh effeus (i.e. person.sem).
Accordingly, increasing the spees fuel pool storspe espachy would have a espi6 cant impact an the pubbc heehh and safety, seguiring propereuen of en linvironmeraal impact s - ent f
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.O:OtO'S I Sj 8, tee NUltEG1150,"Itenner Rak Itefamme Dommen? Dunft for Commmen @ehmary,1987), et 433 - 4 39 g
(describug the vulnerabihty of the hinsk I===" - denga esed by the Phash Bomme piem).
EMS,S I
'Calculauens e, the hash Bessa plant in6eens that leDowess puisnery sammunma feihee, mese and hydrugen l
will be veneesed to the sencase buikhng whose the bydsmenn een turn er domais. 'Dus wiB susuh in pneems and temperature lands which the sessier building is unkkely to M NUltBQCit-eO4, Vol.1, et 626 - &61 OWS S'e:S 53 I
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Deo.o o o o g moooee os i
Doooseoe Atom.
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- o. coco.ee s and u*cens*ing eoo e ai P6*f#o*o*o*J Boards issuances ATOMIC SAFETY AND UCENSING DOARD PANEL m,
. s. peui can.r,* CN.f Aaimw ireiSe Juaq,e p
Rouett M. Lato,* Deputy CNet Aer\\NalratNe Jugne W)
Frederick J. Shori,* Deputy CNet Aer Walreihe Jugge (RechWcal) k i
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Dr. Geogo C. Anderson Dr. Coast H. Hand, Jr.
Dr. Emmoth A. Luebhe i
Chartes techhoeler*
Dr. Jerry Herecur*
Dr. Mennee A. naannaren a
r Petw t.elonha Dr. Dodd L Herlok Morton s. Magpass Gesnn O. Onght Ernest E. He Gary L Muhoon 2
Dr A.DesonCeehan Dr. Frank F. Hooper Marshal E. Meer I
James H. Carpenter
- Helen F. Hoyt*
'Dr.OsserH. Parte
- Dr. Richard F. Cole
- Etestam 8. Johnson Dr. Dodd R. Schink Dr. George A. Perguson Dr Weber H. JoNian lugn W. $mlDi*
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Dr. Harry Foremen Dr. Michael A.10rk-Duggen Dr. Mar 9n J. 80sinsger
,W' Dr. Richard F. Poster Dr. Jerry R. tene*
Seymour Wenner John H Prye lil*
Dr. James C. Lamb GI theklon J.Wome
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l Cite as 30 NRC 66 (1989)
LSP SS 19 440Ge e s UNITED STATES OF AMERICA i
CCMheS E NUCLEAR REGULATORY COMMISSION leGOOee t
,0000040 DOOee ATOMIC SAPETY ANO IJCENSING BOARD y@@g g g g g g l
@OOOe seine Asminiersiiv.Judeos:
CDoogoe l
union s. unsuiise, chairman awry Nemow predwick J. Shen i
Docket Noe. 80 SSt-OL t l
In the Mattw d l
80 353 OL t (ASLBP No. et ses 84 OL-Rt)
(Design Alternatives)
PHiLADELPMA ELECTRIC COMPANY (Limerick Generating Station, Unite 1 July 18,1989 and 2)
I h
NATIONAL ENVIRONMENTAL POLICY ACT: NEED TO CONSIDER SEVERE ACCIDENT DESIGN ALTERNATIVES ~
'Ihe U.S. Court of Appeals for the Third Circuit, in ks decision in Limerick l
Ecology Action,Inc. v. NRC,869 F.2d 719 (3d Cir.1989), granted Intervenor's petition for review of its contention that in grandng the full-power license the l
NRC violated the National Environmental Policy Act of 1969 by failing to ad-equately consider severe-accident mitigasnon design alternatives, and remanded the issue to the Commission for further consideration.
i D.S.O.S.O.O'O O MSO I LICENSING BOARDS: AUTHORITY Oe Where the Commission orders a Licensing Board to limit its consideration g(
l
.I to certain kinds of severe-accident-mitigation design alternatives, the Licensing gggg Board is bound by the Commission's direction and cannot enlarge the jwisdic-g4 l
gg tion conferred by the Commission.
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SEVERE ACCIDENT. MITIGATION DESIGN ALTERNATIVES:
1 IDENT1MCATION i
90000001 SMn# S G ne Licensing soard, as insirveled, identines the severe. accident. mitigation i
gggg g g design alternatives that the agency shall consider for Limerick Genomting Station l
9OOOSSS in rder i satisfy National Environmental Policy Act requirements.
supecoee t i
m'OOO99G MEMORANDUM AND ORDER DOOO 4 S 0 4 4000966 On June 30, 1989, Limerick Ecology Action (LEA), Philadelphia Elec-l tric Company (PECO), and the Nuclear Regulatory Commission Staff (Staff) 3 submitted a report naming six severe-accident mitigation design alternatives (SAMDAs) upon which they agree fall within the Commission Order of May 5, 1989 (unpublished), which designates the kinds of mitigation ahernatives that the agency should consider under remanded LEA Contention DES 5.
%e submittal was in response to the Order of the Board made at the prehearing conference on June 6,1989, which was held in part to denne the issues in the proceeding. We requested that the partiet sutanit by July 3,1989, 1
a stipulation as to those SAMDAs that they agreed should be the subject of the litigation.
Dey were also directed, as to those proposed SAMDAs upon which tiey i
could not agree, to submit memoranda setting forth their differing positions.
In accordance with the Bling schedule LEA submitted a memorandum describing various categories of SAMDAs it claimed fall within the contention to be litigated. Appended to the memorandum was a " List of Primary Candidates for Severe Accident Mitigation" which described eight mitigating systems, here was also included a " Current 'Best Estimate' Risk Reduction Package for l
Limerick" which listed ten items. De foregoing lists were made known to the l
other parties and the Board at the p,hii.g conference. Also attached to the memorandum was a " Supplemental List of Litigable Severe Accident Mitigation Alternatives." Listed were more than eighty claimed mitigation alternatives with references to their sources.
Licensee, in its memorandum, discusses the SAMDAs it concludes should.
be considered for Limerick to satisfy the National Environmental Policy Act 1gggggg (NEPA) and be included in the litigation, it submitted its position on LEA's g4
" Primary Candidates" and " Risk Reduction Package Pmposals." As to the
" Primary Candidates,"it concluded that two of the items were within the ambit of the remand. Licensee termed tie " Risk Reduction Package" a repetition and O
summary of the " Primary Candidates" list and concluded that it presented no 1
new acceptable alternatives.
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As to the "Sg-7-d List" PECO sisses det it was aceived from de
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- 99 C 4 4 g g g the listed items are unfocused, repetitious, and are inadequately referenced.
ggg g g q PECO comments on the tems and concludes that, except as they coincide
,g ggg g g g with mitigation alternatives suggested by the Licensee and accepted by Staff, j
MOOOSO u ental items overall do not present new litigable material in the ggg i
OOOOO Staff,in its memorandum, states its position on de MA pmposals contained 96OOOee in ihe primary Candidein and Risk Reducuan Package pmposal" usungs.
j r,m. e two -Primary Candide.- hems, the Safr respann e the DOOOeoee proposals was negative. It further reported that because of the brief period of time available to it, Staff could not study in any detall MA's new supplemental list of more than eighty tems. Staff requested an opportunity e comment on the items should the Board consider admitting any of the newly listed items.
ne Board, having carefully reviewed the partin' submittals, in this mem-orandum de6nes below the kinds of SAMDAs the Commission in its Order of l
May 5,1989, directed should be considered in the litigation of DES 5. De deAned categories include the SAMDA that were agreed to by the parties. Es-i sentially, these comprise the bases that we 6nd to support the contention as originally submitted.
DISCUSSION Dis proceeding comes about through a remand by de U.S. Court of Appeals t
for the nird Circuit in its decision in Umerick Ecology Action. Inc. v. N#C, 869 F.2d 719 (3d Cir.1989). The Court granted I.EA's petition for review as to its contention that, in granting the full-power license, the NRC violated the National Environmemal Policy Act of 1969 (NEPA) by failing adequately to consider severe accident mitigation design alternatives (SAMDAs). It then remanded the case to the NRC for consideration of SAMDAs.14. at 741.
Pursuant to the Order of the Commission of May 5,1989, this proceeding was instituted. In its Order, the Commission directed that a Licensing Board in considering DES 5,3 LEA's contention underlying its appeal to the Court, limit consideration to those mitigation alternatives identi6ed by the Appeal Board as being supported with the required bases and speci6 city. De Order stated that
- gg the Appeal Board indicated that NRC sponsored studies on severe accident Case
- nks des-5 pwidas est *lt]he owvemanal ask of esseus dumns eyWe et en Ihneuk tienny I
as W far 1.manns is ayuAsus, sed posunsWw entier sadusasse shausene es us design, mado er l
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and speci6 city for the comention. ALAB 819,22 NRC 681,693 94 (1985)."
D0 610 e o e(
LEA in its ammarudum argum &W the muers 2 be thigend in mis
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404D4SG 3*"8'a8 8* *"' '"*' "i"d by Comennon dss.5 m enhedlEA Merno i
gggggggj at 2 3. The Commission's Onter of May 5,1989, is to the contrary and we l
4OOOSSg are bound by the Commission's anter. A licensing board is a body of limited ggggg jurisdiction, its jurisdiction is de6ned by the Commission, and the licensing l
gg board cannot enlarge the jurisdiction confered by the Commission. Dde Amer gg Co ( tawba Nuclear 8 stion, Units 1 and 2), ALAB 825,22 NRC 785,790 lOOO080#
To compiy with the Commission s Order, one m.iiook io ihe portions of the l
- - - ~ ~ ~
Appeal Board decision it cited. Our perusal of the cited passages has brought i
out that the Appeal Board did not9 par 4AraHy name particular SAMDA designs i
l that it considered property supponed. Rather it considered several documents in l
reaching its conclusion that some alternatives had been supponed with the proper basis and speciacity. Among the documents considered were NUREORR 2666, "PWR Severe Accident Delineation and Assessment" and a status report on a study by R&D Associates (RDA). As to NURBORR 2666, the Appeal Board appears to have dismissed that document as "largely qualitative (rather than quantitative)" and as presenting "no cost-beneet analysis for any design feature."
ALAB 819,.npra,22 NRC at 694.
'Ib the RDA status sport, however, the Appeal Board apparently gave its imprimatur quoting a paragraph from that report and terming it "more enlightening" than NURBO/Ot.2666. The quoted parapaph contains the statement that "[f)or Mark Il containment as esemplined by the Limerick Plant, mitigation requirements (functions) have been identi6ed, including containment heat removal, core residue capture and retention without concrete anack, and
.., some kind of venting system." 14. '!he Appeal Bosnt then noted that the RDA project would not be completed for some time but that the interim muerial available (presumably tha status report quoted) " appears to have satis 6ed the I
threshold basis and speci6cityov; '
n ; fct admission of the contention; that ls, particular design changes that might be cos deflective west at least identi6ed."
Id.
We are thus led to the conclusion that, in the Appeal Board's view, only
..q design alternatives aimed at conssinment has ! rpnovel, core residue capture, and Lm O -K ~ A' g g -
venting were adequately supponed. 'the fat r amt the Board noted the pending O
nature of the RDA study suggests to us that ' signs aimed at the three approved u
O ends, designs that might have in fact persilled into the Anal report, would, in retrospect, also be adequately supponed eval if they had not been speci6cally
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treated in the status report.
I4 With the foregoing set of ground rules in mind, we turn now to the individual SAMDAs that have been proposed for litigation.
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In the Report of the Pardes (Report) jointly Aled on June 30,1989, six SAMDAs were accepted by all perdes as litigable matters in this proceedag.
C) O g g,g g g WMgg g Report at 2 3. They are:
- e. Pool,e. eat Remmel Syenem - A sagessee e endaessed systun for H
.a he esem = no ei.n,oei io u., rey,.d.aisies e messi DS800SS 4 i,.s
' - en a saian's d, en s,soo em peep =d ham asheneer *== :.
Oempeep01 s
tpg5MDOe e a e'=aa *ama m = *' w * *""* "*d * = '* Ped off she symy pond as1 ion line.
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- b. Drywell Spey - A new dediceaed sysism for heat and Assim produs somoel r>
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moins Pbel Heat Rammel Syeisen described in (e) above to isjeet weier into the drywell
& =.m..... -y
- c. Con Debris Counsel (Care Catshere)- Two teshniques, ehher e basemat subtle I
f had er asise e dry erucible apprensk, to esennin the debris in a known etable sendnie in the esseekiment.
and poveen ovespessurientiest Fibered Vet - Drywell and weswell vesas to e large Aher (two types -
e.
l sievel er mhaneed water post) to samove heat and Anian psoduais and pavem l
overP'essuriassion.
- f. Larse N-Veeuem Basker - To sessen sameinment preneus to esmo.
spheric novel swoush 20" =15. In eenein wwwe meadas ennen whwe e veeman has been peduced.
Clearly all of these dealgn thernatives fall within the three types of devices speci6ed by the Appeal Board. While the drywell spray system was among those in NURBO/CR 2666 given a cool reception by the Appeal Board it is also a speci6c matter mentioned in the Anal RDA report, NUREGER 4025 (in just this con &guradon: working in conjunction with the pool heat removal system).
NUREGER 4025 at 3 35. All of them are accepted forlitigadon.
Staff is expected to consider the SAMDAs approved above, under its NEPA obligation, along with any subsequent updating to the studies that the Appeal.
Board found provided basis and speciacity for the contendon. Subsequendy i
I developed information that further supports Jr alters the studies is relevant and shoul.1 te considered. Asserted de6clencies in the Staff's future review of the SAMDAs may result in litigation of such matters at the appropriate time.
Intervenor claims that those alternatives and the supporting documents that l,
l 01O 9 wm idend6ed m the Licensing Bwd prior e the Appeal Bwd decision on the admissibility of the contention are relevant and should be considered in this l
g proceeding. LEA Memo at 5 7. LEA's position has merit only to the extent that t
the $AMDAs and supporting documents referred to are those that the Appeal Board identined as providing basis and specincity for the ='aa'h. i.e., the RDA reports and the SAMDAs they identify 'that is to what the Commission limited this litigation. The other alternatives and supporting documen:s that 4 e e-59 3
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were otherwise idendhed to the Licensing Board are beyond the scope of this prumimg.
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OOO O e o e a LEA would have considered as relevant to the prm*a%g anything that i
4000OOI the state of the art has developed since 1984 in severe accident-mitigation OOOeeeO4 designs. Id. at 8-9. 'Ihat is beyond the scope of the proceeding ordered by 4
4OOOO##G the Commission and it cannot be considered.
CeGooeO4 We will accept in this proceedag matters clearly indicated by the Appeal IGGOOS8G Board in ALAB 819 as having been stated with adequate basis and speci6 city i
at the time of that decision.
OoooeeO4 In doirig so we shall, of course, recognize the admissibility of information developed more recently to the extent such 300@OOOQ information pertains to the SAMDAs then extant. We shall not, however, j
deal with SAMDAs that have themselves arisen only in the interim. '!he l
Commission hat set the standard that LEA should have "the same opportunity to t
obtain consideration of speci6c SAMDAs as it would have had if its SAMDA contention had been fully litigated before the Licensing Board when it was submitted." CL18910,30 NRC 1,3 n.1 (1989) (emphasis added). Any other i
SAMDAs will be considered as late-81ed. Id.
As to the matter of fuel pool $res that intervenor wants considered, even i
LEA admits the chief concern here would occur "particularly afler re racking" i
and vould influence choices "sometime over the next decade." IEA Memo at l
- 11. Attach,1 at 5. *Ihe matter might be litigable if and when it is raised in a license moddication proceeding; we will not accept it now.
We reject the LEA position that matters other than design alternatives (modifications in training or procedures, for example) are appropriate for our.
consideration here. LEA Memo at 1213. '!he very acronym itself suggests otherwise, and the court in its remand stated:
sevm accidem adussian duien ehwnmivu m, es de mene ausseeis passade plantdwise inodincations aint ase intended not to psevent en accident, ist to lessen the severity of the impact of an accidem should one occw.
4 869 F.2d 719,731 (emphasis added, footnote omitted),
By the same token, we reject the Intervenor's position that there is no " bright line" between mitigation and prevention. LEA Memo at 4 n.7. We will consider.
only those measures meant to reduce the consequences of an accident that is.
~
-3 already severe, not measures intended to reduce the probability of a severe D e OD'A' ~.M 8 accident. We shall take as " severe" any accident involving serious core damage OO and shaii iook oni, at measu,es meant to i,,ncase ihe accident arter such damage has occurred.
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MA attached to its Memorandum as Anachment 1 ite, " List of Primary MMgg g g, Candidaies for severe Accident Midgation." These are eight kams described in l
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some detail that LEA believes should also be accepted as possible SAMDAs.
)
.DO O O O G e e
- '"'188*:
'SOOOceo a 196 O O~O S e e.
VendnglFQur Denen DOODOe O q DOC @OOee EA describes two types of devices: 6hered containment vendng and a wetwell vent. Both are accepted under items (d) and (e), above.
Conssinment Sprey/Fieeding Medpicadens LEA suggests that a modi 6 cation similar to that carried out by Boston Edison Company at its Pilgrim plant might be in order.14 would involve modifying the existing drywell spray system by plugging censin spray nossles and developing i
alernate supply paths for that systm. The theory is that the additional paths '
would increase the reliability of the system, and the reduction in 60w rate would make a larger number of alurnate sysems capable of sustaining a spray. LEA -
Merao, Anach. I at 3 5, The idea is not whhout some appeal, since it might be l
that the cost of such design changes would be small enough so compensate for their lessened effectiveness compared to that of the completly new system that we have admiued to litigation.
The Licensee argues that LEA has not shown how this alternative derives from any of the alternatives discussed in ALAB 819 (PECO Memo at 9), and l
that is true, although clearly a drywell spray of any sort is a heat removal mechanism, and LEA also suggests a further modi 6cadon that could be viewed as providing some core residue control.1.EA Memo, Attach. I at 4.
The Staff notes that modl6 cations to an existing sysum are "not among the design alternatives listed in the... RDA soport" cited by the Appeal Board.
Staff Memo at 4.1 hat too is true, although the Anal RDA report includes an analysis of a completely hew system as admit 2d in alternative (b), above.
We must, we believe, apply our criteria strictly.1he Appeal Board did i
not speci6cally mention any such modited system. It did, in fact, include
'3
- O O S e" O O O 1 a disclaimer of sons of any such intent when k noted that, in the materal 4(
before it,"[t)he authors of NURBO/CR 2666 did not include consideradon of the containment spray sysum currently insalled at Limerick." ALAB 819, mpra, 3(
22 NRC at 694 n.5. Thus such nwinamimg are manors that the Appeal Board gg could not have had in mind. They represent an approach to midgation that arose in its entirety, not from the materials considered in ALAB 819, but from later thinking, presumably involving Boston Edison Company and others. Thus the
' >O9999 9 t 61 4
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6 Commisska in CL1-89 lo has precluded us from considering this approach save I
iOOGaeee possibir as a ine Bied coniention. cLi 89 io, mere,30 wac at 3 n.i.
DOOMOl 80O9999 COOOOGOl C'"""'*' "'"' # '"'"' "*dW'**d*"8
- WMGQ LEA mentions a variety of modi 6 cations that could result in more effective i
DCO'OS $ 0 g heat removal. LEA Memo, Anach. I at 4 5. There is no indication that these 4OOOGGC redi6cadas was all conempland by me Appel Board, and in fact even DOcce OS(
LEA recognize hat the only real potential canddale for uw at Umerick is an augmented suppression pool cooling function. That SAMDA has been admined i
as system (a), above. Otherwise, the containment heat removal modi 6 cations listed are not accepted for litigation.
Spent Fnel Pool Accident Risk Medfientions t
For the reasons set forth above, this type of modi 6 cation will not be accepted for litigation. Id. at 5-6.
Human Factors Medylendons (laciuding Procedures)
As we have explained above, procedural and training modi 6 cations are not
- I within the scope of this proceeding. LEA attempts to include these items, as well.
as seismic modi 6 cations, the lauer modi 6 cations including chatter insensitive relays. Id. at 64. As we have explained, none of these matters is within the scope as contemplated by the Appeal Board in ALAB 819. The same is true of the notion of control room design review for human factors de6ciencies mentioned by LEA in the same section of its submlual. Id. at 7 8.
Seismie Medficadens LEA devotes a separate section to additional seismic modi 6 cations.14. at 8-9.
Such modiGcations would be aimed primarily at reducing accident frequency.
Marther, there is no indication that they were among the matters sanctioned by the Appeal Board. 'Ihus these modi 6 cations are beyond the scope of the r-s O,0 proceeding.
Rednetien of Denslent lattiator Frequency LEA would litigate modi 6 cations inuended to reduce transients and hence i
reduce accident frequency. Id. at 911. As we have explained above, we consider such measures clearly beyond the scope of the remand.
J GO 62
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Reartor Pressure Vessel Depresssrianden Sysesa MedQicadons O'O LEA would introduce this subject as a "way to reduce core damage fre-y quency" 14. at 11. Since it is only aimed at reducing core damage frequency, OO it is not admissible here.
OO t
e Current Best Estimate" Risk Reductica Package fue Limerick gg 9O Under this caption LEA presents what is apparently a summary of ten 69900@@$
previously mentioned modi 6 cations that together comprise LEA's notion of the optimum package. Id. at 12. Some (e.g., items (a) and (b)) have already been accepted for litigation in whole or in part. De rest have been rejected for reasons set forth above. (We presume that item (j), " spent fuel proof accident risk modi 6 cation," was meant to read " spent fuel pool accident risk modi 6 cation.")
l LEA's Supplemental List LEA attached to its memorandum a supplementallist of approximately eighty.
t Ave items it seeks also 80 litigate. LEA Memo, Attach. 2. This list was submined to Staff and Licensee shortly before the deadline for brie 6ng the Board, and both l
(
these parties complain of the tardiness of the submittal. PECO Memo at 8: Staff Memo at 3. PECO attempted to treat these items in groups. PECO Memo at 14 ff. Staff declined even to attempt a treatment hamw of the brief time that then remained. Staff Memo at 3. We have examined the list. It is redundant, and it is notably ladting in scrutability. Many of the items simply urge us to consider the alternatives " described in" some report. Others appear to duplicate one another or to duplicate mauers already dealt with, but the descnptions are so sparse as to make it impossible to determine exactly whether they ovedap or not. Clearly this subminal does not meet the threshold test of speciacity under any circumstances. We do note one feature, however: - buried deep within the rambling and redundant pile presented is a series of " core catcher" alternatives.
171. Memo, Attach. 2 at 4 5. Licensee has stated that "[t)o the extent these aw. natives were later examined by RDA and included in its Anal report whh costs and bene 6ts related to Limerick discussed with reasonable speci6 city.
i Licensee does not object to the consideration of those alternatives." PECO I.O D O O O e Memo at 32.
ggg he only two core debris control schemes the parties have agreed to examine g
are a basemat rubble bed and a dry t.rucible (qf. Item (c), supre). We note gj that the 6nal RDA report included analysis of a third approach to core debris control: diking and thoria plates on the diaphragm 600r and thoria covered ggg g.
gg gravel beneath the downcomers in the suppression pool. NUREO/CR 4025 at 3G ff. he costs derived for this system are quite comparable to those for the i
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rubble bed and substantially less than those for the dry crucible.14. at 3 44, 10OGe e e $
47, 50. However, it does not appear that any of LEA's listed devices would
,7. O d M k S S O 1 cornepond direedy to the third RDA scheme. We derefore beheve hat the third I
SSOOSSS scheme fans into the camgory of approachu that can only be inroduced as b
, ;OOOOG O 4 Aled contentions and that none of the IJ.A proposals is presendy admissible.
S'MM$ C De " Supplemental List" appears to be a catch all of items that might have
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application to severe-accident m'.lgation, inespecdve of whether or not the items pggggggg fall within the Commission's standard for SAMDAs that are to be considered.
j 09O O S O O 4 I" thi$ P'""""'*
- li't, beins ioo cryptic for meaningful analysis, wul not be considered further. No request will be made of the Staff to comment on the list.
t i
CONCLUSION ne Board has determined that the SAMDAs to be considered pursuant to NEPA in this proceeding consist of the following: containment heat removal, i
core residue capture, and venting. As agreed to by the parties, and approved by j
the Board, the SAMDAs include the foHowing: pool heat removal system,
]
drywell spray, core debns control, anticipated transient without scram vent, Allered vent, and large containment vacuum breaker.
l It is so ORDERED.
THE ATOMIC SAFETY AND l
LICENSING BOARD
{
Jerry Harbour l
ADMINISRATIVE JUDOE I
Frederick J. Shon ADMINISRATIVE JUDOE
'~'
Morton B. Margulies, Chairman
- O.O ADMINISRATIVE LAW 30 DOE A
I Bethesda, Maryland
.31 July 18,1989
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00040e e 6 NED STATES W AMERICA OOOOeeGI
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O M eeE eeOOOe01 O@eOOeeE Atomic SAPaTY AND UCENSING DOARD l
i 000 04 e 01 i
DOGoeooE se,we Adminisi,etive Jud,oe:
l Pan s, sie h, chair ouemve A.unentwow,Jr.
Dr. Jwry Herkur e
in the Mattw of Dooket Noe. 50 275 OLA S0 323-OLA (ASLSP No. 86.Ses 02 0LA)
(Romand Coneeming Zirealey i
Pire; Adequecyof Supplemental Environmental Assessment)
PACIPlc GAS AND ELECTRIC l
COMPANY 1
(Diablo Canyon Nuclear Power Plant, Unite 1 and 2)
July 28,1999 t
The Board dismissed this license amendment proceeding on the unopposed request of the Intervenor, L
MEMORANDUM AND ORDER O.C.G S. O.O:.O (Diaimias Pr**** dias) e Pursuant to the unopposed request of the Sierra Club,* which is the sole amusa
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lamevenn, and upon considnation of the entire record in mis maner, me Bosni eOOOOOe4
- 'ders that this proceeding is DISMISSED.
SOOSSSO4 i
gggggg THE ATOMIC SAFETY AND COOOOGG g laCENSINO BOARD WOOOGSO COO O'S S O 4 Jury Harbow MGOOGeO ADMINISTRATIVE JUDOE t
,00@O9006 I
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Oustave A.1.inenberger, Jr.
ADMINISTRATIVE NDOE -
l Peter B. Bloch, Chair e
ADMINISTRATIVE NDOE ATTACHMENT I
l Sierra Club Request to Wkhdraw Contentions l
The Sierra Oub has reviewed several recently published documents related to Generic Issue 82. These documents contain new Andings relevant to issues raised in this proceeding. In addition, NRC staff has provided the Sierra Qub with supplemr!al information which also has a bearing on this proceeding.
Upon analysis of this additional material, the Sierra Club believes that its con-tentions concerning the risks of catastrophic Zircaloy Ares have been adequately -
addressed. We therefore request permission to withdraw our contention regard.
Ing this issie.
On Friday, July 23, a telephone conference call was held in which Mr. Rut.
berg for the NRC, Mr. Locke for PO&E and Dr. Perguson for the Sierra Qub participated. Dr. Perguson informed the others of the Cub's intention to request i
that the contention related to Generic issue 82 be withdrawn. Mr. Rutherg and
.g Mr. Locke indicated during this call that they would support this request.
DOOO' O44 4 Als at issue in this proceeding is the adequacy of the Supplemental En.
)g g
vironmental Assessment for the seracking. Dr. Perguson suggested that the Sierra Club's contention related to the EA also be withdrawn and that further infonnat discussions between Commission staff and the Siena Qub regarding O
the implementadon of NEPA by the NRC be held somedme in the near future.
Mr. Rutberg agreed that this might be a more productive approach to resolving.
3 the outstanding NEPA issues and that he would be willing to participate in fur.
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ther informal docussion. The Sierra Oub therefore requests that the remaining j
t contention related to the NEPA documents in this Wing also be withdrawn.
l AOG4ee Mr. Rutberg and Mr. h indicated that they would support this request also.
g gggg Thus, the Sierra Qub requests that all the cutstanding contentions in the cut.
gggggg rent proceedings be withdrawn with the understanding that further discussion
'gggggg between the NRC and the Sierra Club regarding the Commission's implemen-i ggggO tation of the National Environmental Pokey Act will occur.
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.Y. O O O O O Respectfelly, U900909 4
__.__.__.__._1 i
(signed)
Dr. Richard D. Ferguson Sierra Club dated July 24,1989 i
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4 Cite as 30 NRC 68 (1989)
LBP 89-21
'O UMTED STATES OF AMERICA -
DOS.
D' NUCLEAR REGULATORY COMMISSION
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ATOMIC SAPETY AND UCENSING BOARD PANEL
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te90000 Before Adminletrative Judge:
1
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- g John H Prye,Ill -
3 I
in the Matter e4
- Docket No. 55 20449
R000ER W. ELLD80 WOOD 1
(Senior Operator Lloones for Catawba -
. Nur. lear Station)-
July 31,1999 '
'Ihe Presiding Of6cer sustains Staff's pmposed denial of a senior reactor i operator's license application for failure to pass the written examination.
' j m
j INITIAL DECISION i
]
In September 1988, Rodger W. Ellingwood took an examination in an ef -
fort to quMify as a senior reactor operator (SRO) for Duke Power Company's '
d Catawba Nuclear Station. Ahhough Mr. Ellingwood passed the operating test, i
he did not pass the written examination.' Staff advised him that he might seek
- 1 R
reconsideration of Staff's grading of the written examination, and Mr. Elling-1 wood followed this co'rse. On March 1 Staff informed Mr. Ellingwood that it
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had reconsidered its marking of the examination in light of Mr. Ellingwood's-W.O M.DiO;O O
$~O1 commenis and had revised his score upward, but had determined that he still had not achieved a possing score. Mr. Ellingwood filed a timely request for S
a hearing with the Commission's Secretary..On April 13 the Secretary, acting J
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f pursuant to 10 C.F.R. 5 2.772(j), forwarded the request to the Chief Adminis-trative Judge who, on April 17, appointed the undersigned to prf&c.8
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i T@O4 0 4 l In an unpublished Memorandum and Order of April 27, I initiated a proceed.
ShS ing on Staff's proposed denial of Mr. Ellingwood's application. Because the M 'S S O Commission had not adopted rules to govern the procedures to be employed in
$OOOgg cases such as these, although it had proposed to apply the rules contained in the recently adopted Subpart L to 10 C.F.R. Part 2,81 determined that the Rules g
M'D'.O OG S contained in Subpart L would apply to this per-ling.8 in an unpublished Order gggg of May 30, the Commission approved this decision.
Pursuant to 10 C.P.R. I 2.1205(h), Mr. Ellingwood and Staff were the parties gggggg to the prr-ting. Pursuant to 10 C.F.R. I 2.1231(a) and (b), Staff Aled with the l - - '"~ " "
Secretary and served a hearing 61e containing all documents and correspondence relevant to the SRO examination taken by Mr. Ellingwood, including any applicable segulations or Staff guidance.
Following service of the hearing file, Mr. Ellingwood Aled and served a detailed description of the mistakes that he maintains Staff made in the grading of.
his examination. He indicated that he did not wish to make an oral presentation.
in support of his position. Staff then responded to Mr. Ellingwood's arguments.
I 6nd that oral presentations are not necessary and that the existing record is suf6ciently complete to permit the issuance of this initial Decision.
'Ihe examination that Mr. Ellingwood took consisted of fotrr sections totaling 112.25 points. In order to pass, it was necessary to score at least 80% on the-examination as a whole and at least 70% on each section. Prior to Staff review,-
Mr. Ellingwood's grade was as follows:
Category Value Score-Percent 30.0 23.10 77 26.25 18.125 69 27.75 22.35 80.5 28.25 20.70.
73.3 112.25 84.275 74.8 Mr. Ellingwood asked Staff to review sixteen answers.. After review, Staff W
credited Mr. Ellingwood with an additional 2.025 points and deleted questions 8,0;.00 I Judas Fadmisk J. shan uns appaused to psevide nodunsel
- in the - ~- er die smoosd.
33ee Pioposed sale, laforenal Heenns Pionadores for Nuclear aancur opassier tJeanse Ad;
. 54 Fed, ans.17.961. April 26.19s9.
3 At siy aque4 suff supptnd Mr. Elhaswood wnh a eupy er subpass 1.
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1 worth 2.5 points from the examination because they were ambiguous. 'lhus after I
4 Ok Staff's review, Mr. Ellingwood's score was as follows:
i S~G Value Change.
Score Percent.
l Category O N
- +0.6 23.70 a0.3 29.5 -
4 26.25
+0.85 18.975 72.3 i
D d 26.75
+0.20 22.55 84.3 Of 27.25 -
+0.375 21.075
- 77.3 O
0 4
O 109.75
+2.025 86.30 78.55
'Ihus, although Mr. Ellingwood achieved the necessary 70% on each section of the examination, he fell 1.45% short of the required overall score. Mr. Elling-wood has asked that I restore the tiute questions that Staff deleted from the j
exam and conclude that his answers to these questions were conect. In addi-j tion, Mr. Ellingwood challenges Staff's marking of questions 8.02, 8.20, and -.
6.09 worth 1.0,0.5, and 0.2 points respectively, if none of the questions that Staff deleted from the exam are restored as Mr. Ellingwood asks, Mr. Elling-wood will need to score 80% of 109.75 to achieve a passing score, or 87.8, s
which is 1.5 points higher than his score as it now stands. If some or all of the.
questions deleted from the exam are restored, the number of additional points -
that Mr. Ellingwood needs to pass will be reduced as follows.
i' Exasm Points ;
Questions Points Total 80 %
Score Needed
.5.10a 0.5 110.25 88.2 86.8 1.44-7.07 1.0 110.75 88.6 87.3 1.3 5.10a &
7.07 1.5 111.25 89.0 87.8 1.2 7.07 &
8.18 2.0 111.75 89.4 88.3 1.1 7.07, 8.18 m,e r
& 5,10a 2.5 112.25 89.8 -
88.8 1.0 0 9 4 9 A D. O.A B
points that he contends Staff should not have deducted from his score. Because
.i Thus Mr. Ethngwood needs a minimum of 1.0 points restored imm the 1.7 Mr. Ellingwood challenges Staff's marking of questions 8.02, 8.20, and 6.09 worth 1.0, 0.5, and 0.2 points respectively, it is evident that he must receive credit for at least question 8.02 if he is to prevail.
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L l-1 Question 8.02 postulates that the plant is at 100% power, that one ECCS j
subsystem is tagged out of service because of mechanical problems with one of i
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lts elements, and that routine maintenance on the other requires that, in order
.b to maintain one operable subsystem, elements of both must be combined in E
a so-called cross train lineup. *!he question then asks which of four possible OI answers most accurately describes the allowances and limitations imposed by
(
4 the technical speci6 cations. Staff states that the postulated facts would require
,W 9 O I-a piant shutdown begun within 1 hour1.157407e-5 days <br />2.777778e-4 hours <br />1.653439e-6 weeks <br />3.805e-7 months <br />. Mr. Ellingwood argues that the correct lMO
$$f answer is that the element of the subsystem tagged out of service for mechanical probiems must be returned io service within 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br /> or ihe plant must be in
!GeOOeo oi Hot Standby within the next 6 hours6.944444e-5 days <br />0.00167 hours <br />9.920635e-6 weeks <br />2.283e-6 months <br /> and Hot Shutdort within the following 6 I
_.J hours.
Mr. Ellingwood bases his argument on that portion of technical specl6 cation 3.5.2 which requires two operable subsystems. If one subsystem is inoperable, this provision requires the action that Mr' Ellingwood gave in his answer.
Mr. Ellingwood also relies on his employer's interpretation of this technical I
speci6 cation which permits a cross-train lineup in order to have one operable u
subsystem. 'Ihat interpretation, however, also notes that a cross train lineup will only be used "when unexpected plant conditions put us into this situation." It '
states that "[ilt will not be a normal practice to intentionally remove equipment for maintenance... that would result in this cross-train lineup."
Because the question clearly postulates that normal malmenance requires the cross train lineup, I must sustain Staff's marking of this question. Mr. Elling-l wood argues that the question postulated that the ECCS subsystems were already I
in this con 6guration and that, given the choice, he would not permit the routine maintenance to take place. While I agree that the situation postulated by_the I
question is as Mr. Ellingwood states, that fact does not help his case. Clearly, the terms of the documentation provided by Mr. Ellingwood do not permit the action that Mr. Ellingwood stated he would take.
Because Mr. Ellingwood needed to receive credit for a correct answer on this question in order to achieve the required 80%, it is unnecessary for me to consider his other arguments. Even if he were to pievail on all of his other arguments, he would not achieve the required 90%. However, in sustaining Staff's marking of the examination I am compelled to observe that
...,_m.
Mr. Ellingwood has fallen a maximum of 1.5 points, or about 1.4% short of a passing score, Kt the same time, Staff has conceded that 2.025 points, or about
'OSJ 1.8%, were incorrectly deducted from Mr. Ellingwood's score on the original-marking and that questions worth 2.5 points, or about 2.2%, were ambiguous and therefore should be deleted. Consequently, one must wonder whether the
-l 1.4% shortfall in Mr. Ellingwood's score is indeed signi6 cant. It seems entirely probable that, given Staff's actions affecting 4.0%, this 1.4% is not a reliable indication that Mr. Ellingwood lacks the necessary competence to be an SRO.
fCC 19 71
d 1
Of course Staff must set a pass fail mark at some point. However, Staff is -
not without $cxibility in its administration of this program. Section 55.47 of the 1
gg,Ogggg g!
Regulations provides that Staff may waive examination and test requirements -
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under certain circumstances, If, as appears to be the case, Mr. Ellingwood gpg.
has satis 6ed all other requirements for an SRO's license,- Staff may wish to 4.
- O y @ f."1 M.99 0 l consider whether waiving his 1 A% shortfall would be appropriate. Doing so :
F M9 OO would not only bene 61 Mr. Ellingwood, it would also save Staff the expense of administering another SRO's examination to him.
'OODO'O4 O I in consideration of the foregoing, it is ORDERED that:
OOOOOOO 1.
Staff's proposed denial of Mr. Ellingwood's application for an SRO's -
O$OOOOOl license is sustained.
l 2.'
Pursuant to 10 C.F.R. 65 2.1253,2.1255,2.762, and 2.763, Mr. Elling-wood may appeal this Initial Decision to the Atomic Safety and Licensing Ap..
peal Board by $ ling a notice of appeal specifying the party appealing and the ;
~
l decision appealed within 10 days following service of this initial Decision.' If Mr. Ellingwood appeals, he must Ale a briefin support of his appeal within 30 days following the 61ing of his notice of appeal. Staff may file a respon-sive brief within 40 days following the expiration of the period for the filing of Mr. Ellingwood's brief.
- 3. In the event that Mr. Ellingwood does not appeal, this initial Decision
{
shall become the Anal action of the Nuclear Regulatory Commission 30 days after its issuance.
PRESIDING OFFICER 4
John H Frye,III ADMINISTRATIVE JUDGE i-Bethesda, Maryland
(
JWy 31,1989 D O,4420. 8 72 1
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enwwe Decisions eemoeon pecoecot Under
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4 Cite as 30 NRC 73 (1989) 00886 OOOOOekg
. UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION gg.
DDDOey l
.e (
OFFICE OF NUCLEAR REACTOR REGULATION,
O@
Thomas E. Murley, Director g
g
---,m, In the Matter of
' Dookot Nos. 80 380
- 80 961 FLORIDA POWER & LIGHT COMPANY t
(Turkey Point Nuclear Generating Plant, Units 3 and 4)
' July 12,1900 in this Partial Decision, the Duector of Nuclear Reactor Regulation defers j
consideration of two issues raised in a Petition Sled by Thomas J. Saporito and
- I denies the remainder of the Petition. Speci6cally, Mr. Saporito requests that the l
NRC keep 'Ihrkey Point Units 3 and 4 shut down until the Licensee completes j
an internal safety investigation and the NRC completes an investigation of j
certain allegations, immediately suspend and revoke the operating licenses for.
4 these units, issue a notice of violation and impose an escalated civil penalty.
on the Licensee because of discrimination and harassment, and immediately!
issue an order outlining steps to be taken to correct pmblems with security,.
operations, maintenance, plant equipment and training deAciencies. As a basis i
for his requests, he alleges that the Licensee has demonstrated problems with j
maintenance, leadership, " quality improvement," operator behavior, training, procedural deficiencies, and securityl that there has been a chilling effect on reporting safety concerns as a result of discrimination and harassment against,
. i employees; and that there has been a willful falsiAcation and destruction of MOMMO safety-related plant documents. In this Partial Decision, the Director defers EAD 4
consideration of the issues of discrimination and destruction of documents, and; j
denics the Petitioner's requests with regard to the other issues.
A 4
soweeme4 73
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I 4
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s RULES OF PRACTICE: SHOW CAUSE PROCEEDING -
bQ@SOOE
'Ihe in8titution I proceedings pursuant to 10 C.P.R. 6 2.202 is appropnate.
C N e S e O I-OalY *h*'e substantial health and safety issues have been raised.
boooOme<
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OOOOOSGI TECHNICAL ISSUES DISCUSSED Systemade Assessments of Licensee Performance
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Procedures and 'Daining Organization and Management
, Security Program.
PARTIAL DIRECTOR'S DECISION UNDER-10 C.F.R. I2.206 INTRODUCTION On December 21,1988, 'Ihomas J. Saporito, Jr., submitted a request pursuant -
to 10 C.F.R. 62.206 that the NRC lake certain actions with regard to the 'Ibrkey l-Point Nuclear Generating Plant. Units 3 and 4.. 'Ihe request of r+- J= 21, 1988, was supplemented by Ave later submittals dated January 13 and 30,.
February 7. April 25 and 26,1989. 'Ihese six documents were' referred to i
the Of6ce of Nuclear Reactor Regulation for consideration pursuant to section -
2.206. 'Ihe C-:- -== will be jointly referred to herein as the Petition.=
The Petition requests the NRC to (1) keep 1brkey Point Units 3 and 4 shut down until Florida Power & Light Company (PPL, the Licensee) completes an internal safety investigation and the NRC completes an investigation of' allegations provided by Mr. Saporito to the NRC Region II of6ce on December 5,1988; (2) immediately suspend and revoke the operating licenses for Units 3 -
and 4; (3) issue a notice of violation and impose an walawd civil penalty on the Licensee because of discrimination and harassment; and (4) im'nediately issue an
~ ~ '
- order outlining the steps to be taken to correct problems with security, operations, maintenance, plant equipment, and employee / operator training de6ciencies.
i As a basis for his requests, the Petitioner makes numemus assertioris.'
Broadly summarized, these are that the Licensee has demonstrated and/or i
gg experienced: (1) poor mamtenance, (2) poor leadership,- (3) poor " quality l
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i.sy.w;.;,nt,"8 (4) unposessional operator behavior, (5) poor training, (6) procedural de6ciencies, and (7) secirity problems. Mr. Saporito also cites a
.,Q Q O g g g g, severe chilling effect on reporting safety concerns as a result of discrimination DOOOSSO4 against and harassment of employees, the willful falsi6 cation and destruction GSOOSSq f safety-related P ant documents, and the Licensee's inability to address and l
OOOO09Oq resolve these problems effectively. In addition to the Petition, numerous C OOMS Q additional letters were submhted by Mr. Saporito which urged the NRC to DOOOSSO4 implement the requests in his Petition.
'OOOO99C In support of his assertions, Mr. Saporito refers to numerous documents that, OOOO9OO4 in his view, have identined problems with the facility. Many of these documents are simply listed without further explanation as to the concerns these documents have identi6ed. Tb the extent that Mr. Saporito has stated his purpose for citing these documents, the Staff has factored the information provided into this Decision. However, to the extent that Mr. Saporito has not provided the factual basis for his request with the specincity required by section 2.206, action need '
not be taken with regard to the alleged Andings of these documents. See, e.g.,
Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), DD '
11,22 NRC 149,154 (1985).
By letter dated January 30,1989, I acknowledged receipt of Mr. Saporito's Petition. In that letter, I explained that a preliminary review of the concerns raised in the Petition did not indicate any immediate need to keep the 'Ibrkey -
Point Units 3 and 4 shut down, since the concerns did not identify any new information that was not already being addressed by the Licensee and the Staff, I
or of which the Staff was not aware. A notice was published in the Federal I
Register on February 6,1989 (54 Fed. Reg. 5708) indicating that the Petitioner's request was under consideration.2 By letter dated February 1,1989, the Licensee was asked to respond to the Petition. In its response, dated March 15, 1989, the Licensee stated that, for the most part, the items referred to in staternents made by Mr. Saporito involved information already addressed by the NRC and PPL, do not raise any safety concerns, are so vague as to preclude meanin.=ful response, or are demonstrably untrue, and that the relief requested in the Petition should be denied.
With the exception of two issues raised in the Petition, the NRC Staff review of the Petition is now complete. Those two issues, which were also submitted
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as allegations to the Region 11 of6ce, are still under investigation and allege
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lamer to Thannes J, tapam Jr., tesa Thesnes E. Muley, Duemer, ornes er Nunneer sessner amplation, dead Aps014.1989, saknowledged sueuipt er ademonal mahamsals by Mr. seperna. hi that lamar. Mr. sepsman m
was intensed thes the NaC would nei sapenasty enknowledge seampt er any Aiems laness he midu embunit i
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i that there has been (1) a chilling effect on reporting safety concerns as a result i
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of d'?dmination and harassment and (2) a willful falsi6 cation and destruction of safety related documents. When the investigation is complete, the NRC will' determine whether any action is appropriate to take with regard to these two ggggg(
issues. With regard to the remaining issues raised by the Petitioner, for reasons OSOS S Gi stated m this Partial Decision, the Petitioner's requests are denied.
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BACKGROUND-ye'O'o OG O i IeOOOeeO De NRC Staff hes been concerned about the performance of the Wrkey Point -
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plant for a number of years. His has been evidenced by an increasing number 9C)O O O O 9_
(and magnitude) of civil penalties that peaked in 1986 and 1987, issuance of several NRC orders for speci6c improvements, below-average ratings and identi6 cation of areas needing improvement in the NRC systematic assessments of licensee performance (SAL.Ps), a high level of NRC inspection effort, and the inclusion of hrkey Point on the NRC list of plants to be monitored more closely.
Over the years the NRC Staff has identined and documented specific issues of concern. For example, the most recent SALP report identified maintenance and operations as areas needmg improvement. In two of the three most recent SALP reports, training has been rated below average, in the confirmatory -
order issued by the NRC on October 19, 1987, management concerns were identi6ed and an independent management appraisal was ordered. Also,in that-confirmatory order, the operator professionalism issue was recognized and a-
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management on-shift (MOS) program was ordered. De need for improved plant -
procedures was recognized in a conarmatory order dated July 13,1984, and the y
'I Licensee initiated a broad scoped procedures upgrade program. A subsequent confirmatory order dated August 12, 1986, was issued, superseding the order of July 13,1984, to expand the scope of requirements to include certain other items.
In response to these concerns, the Licensee has made many improvements.
In the past few years, several hundred million dollars worth of improved facilities and equipment have been added at Wrkey Point, such as a new maintenance facility, a new training building with a plant specific simulator, and new steam generators, ne Licensee is currently in the process _ of adding ~
two new safety related emergency electric power generators, a major safety
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enhancement, at an additional cost of about 80 mittion dollars. Reliability of equipment has been enhanced by adding many preventive maintenance and
-ggjg g' surveillance procedures for plant equipment. Extensive changes in management have been made, bringing in new experienced personnel in key positions and q
adopting an improved management philosophy. In 1988, the plant set site records gg for continuous operation, with no mai}or operational events. The number and S4 D
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magnitude of civil penalties also has decreased markedly since 1987. Although MSOe O O d the improvements uoted above have been made, and I believe the plant to be safer i
today than before the imgwements we,e made, the NRC is still dissatis6ed with M D O O'O 4 O,
'Ibrkey Point's performance. 'Ihe many program, management, and hardware lie D O S S O (
changes implemented at 'Ibrkey Point have not resulted in plant performance on -
l4.ODOO $ Q; a par with NRC expectations. We intend to continue to monitor the operation NOS O (.
of the plant closely until it is clear that the plant is operating well and can be SOOOSSG expected to continue to do m.
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On December 5,1988, Mr. Saporito provided the NRC Region 11 of6ce DOO O g g g with a number of allegations that he refers to in support of his subsequent l
requests. Nearly all of these allegations were referred to the Licensee in a leuer from the NRC Staff, dated January 6,1989. '!he Licensee responded to these allegations in a letter dated February 24, 1989. An NRC special inspection was conducted to follow up on these allegations. '!he inspection team reviewed the Licensee's response in conjunction with the followup inspection :
of the allegations. Although forty-three of the allegations were subswied.
the inspection team concluded that the allegations raised no new safety issues that had not been previously addressed. See Inspection Report 50-250/89-13 l
l and 50-251/8913, dated May 8,1989.
Subsequently, on March 3 and 15,1989, a second group of maintenance-related allegations was provided to the NRC Region !! of6cc by Mr. Saporito.
'Ihese were very similer in substance to the earlier maintenance-related allega-tions. 'Ihese allegations were sent to the Licensee for response on April 12, 1989. 'Ihe NRC Staff has reviewed these allegations and has concluded that s'
the second group of allegations had little safety signi6cance_ and will notify Mr. Saporito of our Andings on them under separate cover.
DISCUSSION For the purposes of the discussion below, the Petitioner's major areas of concern (which were described earlier in the introduction to this Decision) have been separated into three categories: (1) poor maintenance, leadership, quality improvement, unprofessional behavior, and inability of management to resolve these problems; (2) procedural de6ciencies and poor training; and (3) poor security. As noted above, the two remaining issues, relating to a chilling effect hbOSN M
l on reporting safety concerns as a result of discrimination and harassment and l
willful falsl6 cation of documents, are still under investigation.
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1.
Pbor Malatemance, Leadership, Quauty impronment, Unprofessional Behavior, and Isability of Management to Resolve Problems he Petitioner alleges that 7bskey Point Plant has demonstrated poor mainte-
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nonce practices, poor leadership, poor " quality improvement" (i.e., poor quality NMOO k control and a poor enforcement history), improfessional operator behavior, and OO1 a lack of suitable management expertase to properly address and resolve these EMENO O ocacerns. In support of these assertions, the Petitioner refers to the Enercon SMOO O I Services Inc report, which was t.n independent management appraisal that iden.
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ti6ed ave root causes of performance de6ciencies to be inadequate leadership, -
inadequie sense of personal accountability, lack of suf5cient technical support, inadequacies in key support systems, and a lack of a strong sense ofleadership j
i in the operations department, which in his view fails tc " demand exceuence" from other departments. De Petitioner also refers to the 6ndings of the SALP -
report dated Febmary 7,1985, for the period July 1,1983, through October 31,1984 (50-250/85-01; 50 251/85 01), and the most recent SALP report dated September 13,1988 (50 250/8815; 50-251/88-15), for the penod June 1,1987, through June 30,1988, which rated the maineenance area Category 3 and had many adverse findings that the Petitioner lists. De Petitioner also asserts that -
because of problems, including maintenance, the Licensee 'has been unable to bring Unit 3 on line since early December 1988. Finally, the Petitioner asserts that conduct of maintenance performed on the Unit 3 thimble guide tube assem-blies departed from safety related prvce4,Jw. In his view, the Licensee's zeal to return these nuclear units to operation resulted in " rush work," and a severe -
accident may well have resulted from this maintenance activity.
With respect to the Petitioner's concern about poor maintenance, the NRC.
Staff has recognized the need for improvement in this area as evidenced by a q
low SALP rathC h dute of the last four SALP periods, including the most-recent one. However, a low SALP rating does not mean a plant is unsafe but q
i that the NRC believes improvements should be made by the f *= Partly because of aging plant equipment, a good maintenance program is especially important to ensure a well mn plant. In bimonthly management meetings with q
the Licensee since 1987, the NRC Staff has canebatly focused on the need for maintenance improvements. The 1 *= aMart a new maintenance building in -
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1988, has signiacantly increased the ratio of paventive maintenance to corrective
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maintenance activities ova the past year, and has markedly reduced the number e san =x x of sreen tass (sianifyins maintamance needs) in the control room. A special '
NRC maintenance inspection was cantine M in December 1988, and Inspection Report 50 250/88 32; 50-251/88-32 was issued on April 4,1989. His rep:st i
concluded that a satisfactory maineenance program had been developed, but that its implementation is poor. An improving trend was noted, stemming from
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c and from newly instituted.
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programmatic changes. De recent focus at the site on improving the spare parts program, combined with other improvements in the maintenance program such 04DO.0 a o el as management changes in the maintenance organintion and a higher level of E M S4 staf6ng, should assist in improving the overall reliability of plant equipment.
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Although a number of maintenance-related allegations were presented to our SS'SDOSS (
Region 11 of6ce by the Petitioner, inspection Report 50 250/89-13; 50-251/89-lM@@C) 13 dated May 8,1989, presented the results of a special inspection of those
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allegations, which indicated that no signi6 cant safety concerns were found that 30 6 gg would justify shutting down the plant.
De Petitioner also cited an instance of maintenance error in performing work ggggggg on the Unit 3 thimble guide tube assemblies, as noted above, and attributes it '
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to rush work. Our inspection efforts indicate the error occurred because of carelessness by a worker. Although the guide tube to be repaired was well marked, and details of the repair work to be performed had been discussed with the worker, he proceeded to begin work on the wrong guide tube. The mistake was considered to result from an i=amyable implementation of work controls,.
and the worker was dismissed from employment by the Licensee.
With respect to Petitioner's concerns about unprofessional operator behavior, this concern was raised by the NRC Staff in 1987 and documented in Inspec-tion Report 50 250/87 44; 50-251/87-44, dated December 9,1987. Although unprofessional behavior was found not to be pervasive at the site, there were isolated instances identl6ed and reported in the inspection report. One such
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instance involved an unlicensed person manipulating a control under the super.
vision of a licensed operator, in violation of NRC regulations. his event was identined by the Licensee, although the Licensee did not respond with action in a timely manner The NRC responded with high-level discussions with the Licensee which resulted in NRC conducting continuous control room observa-tions over an extended period. Since that concern was raised, the Licensee has appointed a new Plant Manager, a new Operations Superintendent, and several new operations shift supervisors in addition, a number of newly trained oper-alors have been added, while some previous operators have been removed from on-shift duty. As a result the NRC Staff believes the quality of the operations staff has improved. A new guidance documen'. for professional behavior was -
prepared for control room operators and committed to by them. Control room-operators have begun wearing uniforms in an effort to establish pride in their
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Position and teamwork. As part of the confirmatory order of October 19,1987, a management on-shift (MOS) program was implemented in late 1987 to mon g
itor operations. This program was conceived by the Licensee and included a O
number of independent managers and personnel, experies.ced in control room operations, who served on shift in a monitoring capacity. Because of the op-Df crational improvements already implemented and under way, the NRC granted M
approval for the Licensee to terminate the MOS program on January 20,1989, 94 1 ococeo
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With respect to the Petitioner's concerns about management issues, such as OO@Oeoei poor leadership, poor quality improvement, and the inabilky of management i
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io addras and moive concerns, the NRC Staff recognized the need for im.
DS.O O O S S G proved management at Turkey Point several years ago. In its con 6rmatory order lO0 0Oee O 4 daiad oceber 19,1987, the NRC Staff con 6rmed the Ucensee's commitment DOOO O @ e e io cooperate in an independent manasement appraisal (IMA) of the Licensee's COOOOGO(
corporate and Turkey Point organizations.- his appraisal was carried out ly OCOOO99G Enercon Services Inc., and issued as a report dated April 18,1988. The issues D O O'O@ 9 O q -
noted above were identl6ed in the IMA along with numerous recommendations.
ggg.gggg he Licensee's formal response to the IMA was dated August 15,1988. How-
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ever, actions to deal with the management problems began earlier, Widespread management changes were made throughout the organization at corporate head-quarters and at the Turkey Point site, bringing in new leadership from outside -
the Licensee's organization in several important positions, including a new she:
Vice President in mid-1987, a new Operations Superintendent in October 1987,-
a new Senior Vice President-Nuclear in January 1988, a new Plant Manager in May 1988, and a new site Vice President in May 1989.' Also, in early 1989, a new Maintenance Superintendent and a new Security Director were appointed, in the Licensee's response to the IMA, numerous actions were identi6cd to ad-dress and resolve the issues identided in the IMA. Many of these actions have already been implemented, while some are ongoing,~ including setting goals and communicating them to employees, dc6ningjob requirements and matching them with skilled people, and establishing performance measures, Quality improve-ment information, such as trends in radiation exposures and plant performance indmetors, is updated on a monthly basis and provided to top management.'
De NRC Staffis continuing to monitor the Licensee's implementation of the.
numerous IMA recommendations. We believe the IMA effort and the Licensee's response so far have resulted in some performance improvernents.' Ibr example,
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both units have operated in 1988 with few problems, the number and severity l'
of civil penalties have decreased signi6cantly from the high levels of 1986 and.-
1987, and an improved and more professional attitude can be seen at the site, especially in operations. There are still problems to be overcome at the plant, but prugress has been and is being made.
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2.
Procedural De8ciencies and Poor 1Yaining H
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j De Petitioner raises concerns with regard to the training of personnel and with procedures. He claims that these problems also have been part of the reason that the Licensee has been unable to bring Unit 3 on line since early Docember-1988. In support of his allegations in these areas, he refers to NRC Inspection Report 50 250/85 32; 50-251/85 32. His report had indicated that there were no administrative controls or technical speci6 cation requirements in place to ensure
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the availability of the nonsafety-grade standby feodwater system. De report further stated that, with regard to the safety related nitrogen system, it cannot i
D00oeoeq be assumed that control room operators would shift the flow control valves from -
- G O O O S S Of automatic to manual mode within 6-7 minuies following an accident because (1)
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some operators were trained to assume that they had 15 to 20 minutes to take
.S.O O O O S Gl action, and (2) applicable emergency procedures did not include requirements gggg for the operators to shift the flow control valves to manual. The Petitioner also asserts that the Licensee has a well-documented history involving departures MOOOe e 01 from approved procedures that have resulted in escalated enforcement actions.
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- "8pKMo przedural de6&n&s, Wem am two basic masons fw such 9OOoeeof de6ciencies: (1) the procedures themselves need improvement, and (2) the pro.
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cedures are not adhered to strictly. De latter problem is a management / training l
issue that is expected to improve as the management and training improvements continue to take effect. De need for improved procedures at hrkey Point was I
I recognized by the NRC Staff in the early 1980s. After discussions between NRC and the Licensee, the Licensee proposed a major performance enhance-ment program (PEP) in a letter to the NRC Region 11 office, dated April 11, 1984. In con 6rmatory orders issued by the Commission on July 13,1984, and August 12,1986, the PEP program was made a requirement. One facet of PEP was a procedures upgrade program.
As part of the procedures upgrade program, a major upgrade was made to l
pmcedures for technical speci6 cation surveillances. Many added surveillances/
procedures were developed 13 permit operators to more closely monitor the per-formance of their equipment. Already existing surveillance procedures were re-vised and improved. Additional preventive maintenance procedures were added.
The NRC Staff believes that this effort produced a significant enhancement to safe plant operation. ~ Other procedural improvements include: the adoption of the writers guide for iWeg4, 4 prepared by the institute of Nuclear Power Operations (1NPO); the consideration of human factors when developing proce-dures; required walkdowns of new procedures, where appropriate; and the im-piementation of upgraded emergency operation procedures in response to NRC requirements that were developed after the accident at Three Mile Island. De NRC Staff r-n% that significant additional improvements are still needed with respect to procedures at the plant. However, the Licensee has made con.
siderable progress, and the procedure upgrade process is an activity expected to c ntinue fM *e life f a plant (at all plants) and can proceed while the plant QO GO;O20.9 q operates.
g With respect to training et hrkey Point, a new 'Daining Superintendent, who is expenenced in operations, was appointed in mid 1987. The training staff was OEU augmented at that time by about 6fteen contractor peraonnel who had previously UEOOOO O held senior reactor operator licenses. In addition, the non-operator training O#46' changed from a self-teach program to include classroom instruction. He training T
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I staff has now increased to nearly eighty personnel from fewer than sixty in es-ly
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1987. De Licensee's inemasing secognition of the importance of training has
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led to larger classes of:rainees than existed a few years ago. De addition of a new training facility in late 1986, includag a recendy added plant-speci6c g @ M W Ol
- simulator, represents an improved training capability and is expected to result pg004O(
in a stronger operational staff over the long term. Even with the improvements _
O noted, the NRC Staff believes further near term progress is needed, especially -
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t= of improvements already identl6ed by the Lk== -
4 ggg Ol his was evidenced by recent unsadsfactory performance on NRC-administered gggggg requali6 cation examinations. Pallowing these exams, extensive retraining and P
NRC-monitored reexamination were administered. De Licensee has recently
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outlined steps that are expected to lead to a satisfactory training program. Ibr ;
example, simulator training will be increased, emergency plan criteria will be '
designed into the simulator scenario guides, and instructors will be retrained and evaluated. De Staff has been closely monitoring the Licensee's progress in this area.
With respect to cenain Andings in laspection Report 50-2504 5 32; 50-251/85 32 cited by the Pedtioner, these Andmgs were published in 1985 and do not resect the current state of the plant. Corrective actions were taken years ago.
For example, for the nonsafety grade standby feedwater system, administrative l
controls, such as periodic testing and limhed allowable outage time for the i
pumps, have been in place for several years to ensure the availability on demand of this system. As another example, for the safety-related nitrogen system,-
i the Licensee responded on October 1,1986, to an NRC notice of violadon.
De Ek=~ stated that procedures had been avised and operators trained for -
proper shifting of the auxiliary feedwater flow control valves from automatic to manual. - Dis was inspected and closed by the NRC in Inspection Report.
50 250/8814; 50 251/88-14, dated July 29,1988, which found that these items '
had been satisfactorily resolved.
3.
Poor Security Finally, the Petitioner alleges weaknesses in the Licensee's security program, as evidenced by what he describes as a contmuing number of violations in this 5
area. In this connection, the Petitioner refers to a number of er.forcement actions ggggggg taken against the Lk=~. as well as the SALP report for the period June 1, 1987, through June 30,1988, which=====d the Licensee's performance in this Bg area as a Category 3.
De Pedtioner has provided no new information regarding security weak-4 nesses. -Instead he cites various reports issued by the NRC or to the NRC.
i nese were all considered in our performance assessment process (SALP) and formed part of the basis for a SALP Category 3 rating in the area of secu-
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l rity, Where signi6 cant violations of regulations have occurred, civil penalties I
have been imposed to encourage the Licensee to improve in specific areas. The j
POGEAe o e e, ucensee has continued to increme its security staff, restructure the manage-i O.OOM 40 4 ment, and add system improvements, The NRC is continuing to require further i
044OO eSQ improvements. However, the security violadons cited by the Petitioner do not OOOOOSO4 represent a LiWwwn of the plant security which poses a significant threat to DS N d the public health and safety, or that would justify shutting down the plant. A CQO O g g Q (.
plant security system has many redundant and diverse features so that security pgg@ggg is not compromised when one feature weakens.
0900400 C CONCLUSION l
The Petitioner seeks the suspension and revocation of the operating licenses i
for the 'Ibrkey Point facility pursuant to 10 C.F.R. 62.202, in addition the Petitioner asks that Units 3 and 4 not be permitted to resta't until the Licensee j
and the NRC Staff complete investigations of allegations provided to NRC on December 5,1988, lhe Petitioner further requests that an escalated civil penalty be imposed upon the Licensee for discrimination against and harassment of employees and that NRC immediately issue an order outlining the steps to be taken to correct problems with security, operauons, maintenance, plant equipment, and employec/ operator training deficiencies.
The institution of proceedings pursuant to section 2.202 is appropriate only where substantial health and safety issues have been raised. See Consolidated 3
j Edison Co. of New York (Indian Point, Units 1, 2, and 3), CLI 75-8, 2 NRC 173,176 (1975), and Washington Public Power System (WPPSS Nuclear Project l
No. 2), DD-84 7,19 NRC 899,923 (1984). This is the standard that has been j
applied to determine whether the actions requested in the Petition are warranted.
i For the reasons discussed abo <c, no substantial basis was found for taking -
l_
the actions requested in the Petition. Rather, based upon the identification l
and pursuit of concerns by the NRC Staff imd the progress and improvements -
made by the Licensee in its efforts to resolve these concerns, it is concluded l
that no substantial health and safety issues have been raised by the Petition.
i Accordingly, the Petitioner's request for action pursuant to section 2.202, l
except for the remaining two open issues, is denied. As provided in 10 C.F.R. 62.206(c), a copy of this Decision will be filed with the Secretary for COOMOOe I
the Commission's review.
When the NRC Staff investigation of the issues of a severe chilling effect on l
R4.4 reporting safety concerns as a result of discrimination and harassment and of 4
the willful falsification and destruction of safety related documents is complete, 9
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I I will funher review the Petitioner's section 2.206 request with regard to these 0800428i M bu88 and hine whether any action is appropriate.
MWDensee POR ME NUCLEAR-eoa g g g g}.
REOULATORY COMMISSION :
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Thomas E. Murley, Director 90 eO ('
Of6ce of Nuclear Reactor
- @COOOOO Regulation
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Dated at Rockville, Maryland, 5
this 12th day of July 1989.
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- W.5.s0VtamaENT pn3nithC 0FFICE nggo.262 430 a00011 4